The State v Tikiria Amos (2005) N2614

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 19 September 2005
• Citation: (2005) N2614
• Year: 2005
• Court: National Court
• Docket Number: CR 599 of 2004
• Judgement Number: N2614

Full Title: CR 599 of 2004; The State v Tikiria Amos (2005) N2614

National Court: Sevua J

Judgment Delivered: 19 September 2005

N2614

PAPUA NEW GUINEA

[National Court of Justice]

CR 599 of 2004

THE STATE

-v-

TIKIRIA AMOS

Kavieng : Sevua, J

2004 : 11th & 14th May

2005 : 19th September

CRIMINAL LAW – Sentence – Incest – Plea of guilty – Father and daughters – Pregnancy of one victim – Sentencing principles – Tariff for rape sentences applicable – Incest serious crime – Severe penalty warranted.

Held:

1. This is a very serious case of incest which warrants serious considerations on penalty.

2. Incest committed without consent or by force is tantamount to rape therefore the penalty for rape is appropriate. Principles in Mitige Neheye & Martin Gawi v. The State [1994] PNRLR 71; followed, adopted and applied.

3. Incest with a daughter is a circumstance of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. Principle in The State v. Mitige Neheye [1988-89] PNGLR 174; followed, adopted and applied.

4. Incest with a daughter is a serious breach of parental responsibility and trust reposed on a father.

5. In the circumstances of this case, the accused deserves to be punished severely.

Cases cited in the judgment:

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

Grayson Andowa v. The State (1998) unreported, SC 576, 1st October 1998

The State v. Mitige Neheye [1988-89] PNGLR 174

Mr. L. Rangan for State

Ms. A. Turi for Accused

19th September 2005

SEVUA, J : On 14th May 2004, I delivered judgment on sentence in this matter. Due to the fact that the judgment on sentence was delivered on the last day of the circuit in Kavieng, I was unable to publish full reasons then, however I did undertake to do that later and I do apologise for the delay in doing that now.

The accused pleaded guilty to three counts of incest between the years 2002 and 2004, the first and second counts, contrary to s.223 (1) of the Criminal Code, under the old provision, while count 3, contrary to the new s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

I imposed the following sentences. Count 1 – 25 years imprisonment with hard labour; Count 2 – 7 years in hard labour and Count 3 – 7 years in hard labour. I ordered that the sentence in Count 2 be made concurrent with the sentence for Count 1 while the sentence in Count 3 be cumulative to the sentence in Count 1.

The brief facts in respect of the first two counts were that between the years 2000 and 2003, the accused had sexual intercourse with his third born daughter, E and also his fourth born daughter, R at Kabanut Village, Namatanai. In respect of the third count, the accused had sexual intercourse with his daughter R sometime in February 2004.

After the Court entered a plea of guilty on all counts, Ms. Turi, counsel for the accused, made an application in respect of Count 3 to change the plea on the basis that there is insufficient evidence. The Court intimated that the accused had admitted certain set of facts and pleaded guilty to them. If there is no evidence then the Court will make a ruling on that issue or if the accused changed his plea in allocutus, the Court will vacate the plea. Mr. Rangan for the State submitted that there is admission in the record of interview that the State relies on. Ms. Turi then made an application to withdraw her previous application and the State did not object. The Court then granted the application to withdraw the first application and noted that the defence had no application to make.

After reading the depositions the Court convicted the accused of the second and third count and indicated that it would address all three counts together. Upon a careful perusal of the evidence, I am satisfied that the accused did have sexual intercourse with his daughter E and I therefore enter a plea of guilty subject to allocutus.

In allocutus, the accused began reading from a written statement he had written. I think basically he was trying to say that he committed the crimes because of some customary practices, which I assumed he was referring to sorcery. The hand written statement was handed up to the Court and I can confirm that the accused said that someone must have made sorcery on him to make him commit these offences.

Ms. Turi counsel for the prisoner submitted that the prisoner is 38 years old and has seven children including the two victims. He was educated to Grade 10 and at the time he committed these offences, he was employed as a carpenter at Kabanut Top-up Primary School. Counsel submitted that from instructions, the prisoner had no good reasons to have sexual intercourse with his daughters. The acts of sexual intercourse were not reported to anyone until R became pregnant and she confessed that her father made her pregnant. It was further submitted that this was a serious case with aggravating factors.

The Court accepts that this case is very serious because it involves circumstances of aggravation which warrants serious considerations on penalty. One of the aggravating features of the case is that one of the two daughters, R, became pregnant as a result of the prisoner’s incestuous acts. To appreciate the features of aggravation in this case, I consider it necessary to look at her evidence, who was then a Grade 7 student at Kabanut Top-up Primary School at the time of the offence.

R gave a statement to Police on 15th February 2004. She said she was 16 years old then. She recalled what happened on a day in January 2002, when she and her elder sister, E, the first victim, and their father (prisoner) went to visit her grandfather. They decided to spend the night there so she slept in one of the rooms in her grandfather’s main house, whilst E, the prisoner and the grandfather slept in the other house. At night she went out to relieve herself when she noticed torch lights in the grandfather’s house where the others were sleeping. From the torchlight, she saw her father having sexual intercourse with E as she laid down on her back on the bed. She returned to the main house. After they returned to their own house, she reported the matter to her mother who questioned E, but E denied the claim.

Then sometimes after that incident, in the same month, the two daughters were asleep in their room one night when the prisoner came home drunk and opened the door to their room and grabbed the victim R by her hand and woke her up. The victim was led outside into some banana trees near the house where the prisoner told her to undress. She refused so the prisoner threatened to chop her neck off with his bush knife. The prisoner then forced the victim onto the ground and forced her legs apart then had sex with her. After he had done this, he again threatened the victim if she told her mother.

From then onwards, it became a routine for the prisoner to take the victim R out to the coconut plantation or into the bush and have sexual intercourse with her. At other times, he did this to both daughters on the same day, but one after the other in the absence of each other. He would verbally call one victim away from the other to have sex with her then have another turn with the other daughter.

On a number of occasions, the prisoner had licked R vagina either before or after sexual intercourse. At other times, he had sodomised R or had anal sex with her. On other occasions in the victim’s bedroom, the prisoner had sex with both victims. He would have sex with one then come off her then have sex with the other in the same room.

The prisoner’s incestuous acts with his daughters commenced in 2002 and continued to 2004. In September 2003, the victim R missed her menstrual period and became pregnant as a result of the prisoner’s incestuous acts. By February 2004, she was 5 months pregnant. Then on 12th February 2004, she informed her mother that the prisoner was responsible for her pregnancy.

For purpose of sentence, I consider that this is a very serious case because of the aggravating circumstances that I have adverted to and will reiterate them here. The acts of sexual intercourse were perpetrated for a little over 2 years. As a result of the long period of the accused’s incestuous acts, one of the daughters became pregnant. The acts of incest was committed with the two daughters over two years, sometimes in the same room, and at other times, in the plantation, garden or bush. Sometimes the crime was committed with the two daughters one after the other in their presence. At other times, the prisoner would call one victim away from the other to commit incest with, then have his turn with the other, but on the same day.

Sexual perversions or indignities, which in my view, amounted to circumstances of aggravation also exist in this case. The victim, R was subjected to anal sex or sodomy on a number of occasions. At times the prisoner licked her vagina either prior to, or after the acts of sexual intercourse. Threats of violence were made to her. She became pregnant in September 2003 and by early this year (February, 2004) she was 5 months pregnant.

The accused is the biological father of the two victims. His incestuous acts with his two daughters therefore is a circumstance of aggravation of the most severe kind. I will allude to this principle later. However, it needs to be noted and highlighted at this juncture that this was not one single incestuous act with one daughter. There were numerous incestuous acts with two daughters resulting in...