The State v Waninara Judas Liligau (2007) N3195

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Citation: (2007) N3195
• Docket Number: CR NO 790 OF 2004
• Court: National Court
• Year: 2007
• Judgement Number: N3195

Full Title: CR NO 790 OF 2004; The State v Waninara Judas Liligau (2007) N3195

National Court: Lenalia, J

Judgment Delivered: April 2007

N3195

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 790 OF 2004

THE STATE

-V-

WANINARA JUDAS LILIGAU

Kokopo: Lenalia, J.

2007: 13 & 19 April

CRIMINAL LAW – Sexual offences – Sexual penetration of blood relative –

Aggravations – Incest by men of daughter – Age 16 years – Offences committed for period of years from 2000 to 2004 – Persistent sexual penetration – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 200, s.229 (A) (2)

CRIMINAL LAW – Incest aggravations – Breach of trust – Pregnancy –

Child born to victim – Incest and like offences very prevalent in Tolai community – Substantial age differences – Pattern of abuse - Aggravation – Punitive and deterrent sentence called for – Sentence of 15 years appropriate.

Cases cited

Public Prosecutor v Terrance Kaveku [1977] PNGLR 110

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

The State v Sottie Apusa [1988-89] PNGLR 172

The State v Mitige Neheya [1988-89] PNGLR 174

Gimble v The State [1988-89] PNGLR 271

Mase v The State [1991] PNGRL 88

Public Prosecutor v Don Hale (1998) SC 546

The State v David Kiaplaen and Pauline Warpin (1999) N1877

The State v Arthur Maradi (1999) N1878

The State v Donald Kemimou (2001) N2299

The State v Amos Audada (2003) N2554

The State v Eddie Sam (2004) N2521

The State v Thomas Angup (2005) N2830

The State v Esrom Tiama (2006) N3054

The State v Hosea Wartovo (30.3.07) CR.N0.695 of 2006

Counsel

Mr. L. Rangan, for the State

Ms. S. Maliaki, for the Accused

19 April, 2007

1. LENALIA, J: The accused, Waninara Judas Liligau of Wunamami village in the precincts of Kokopo town pleaded guilty to three charges of incest or sexual penetration of a close blood relative against his own daughter who I will only refer to as L. P. L. contrary to s.223 (1) & (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Facts

2. The facts to which the prisoner pleaded guilty are as shown by the victim’s statement and other statements by village elders and the victim’s mother. In an unknown date in the year 2000, after the accused’s family had had dinner, the victim started to wash dishes in the kitchen. The accused took the victim’s hand and pulled her onto a bed still in the kitchen and sexually penetrated her. This was done in the absence of the mother and other children. After having sex, the prisoner told the victim not to tell anyone about what he did to her.

3. The second time the prisoner sexually penetrated the complainant was again on an unknown date. The complainant was collecting dirty clothes to do laundry. The prisoner came to where the victim was and pushed her to the bed-room belonging to the prisoner and his wife and thereafter he had sex with her. The victim’s statement is clear that sexual intercourse between the prisoner and his daughter continued until the victim got pregnant resulting in the victim giving birth to a female child on 25 May 2002. It is evident from the facts tendered that each time the accused had sex with the victim, he would tell her not to tell anybody about what he was doing to her. As well, the prisoner would give her money.

4. The saddest thing about the victim was that when the relatives realized that she was pregnant they told the victim’s mother and one day, her mother called her in during a luncheon break and asked her who or which person was responsible for the pregnancy. Due to the shame she bore at that time, she did not want to reveal who was responsible for the child in her. Then after she had given birth, the mother of the victim realized that the baby had similar features to the victim’s father. The victim then revealed that her father was responsible for making her pregnant and he was the father of her child.

5. It is noted that sexual intercourse between the prisoner and the victim continued until the month of January 2004. The last act of sexual penetration took place in a cocoa or coconut fermentary. After the victim had revealed to her mother and relatives her father’s relationship with her, she ran away to her boy-friend at Volavolo village on North Coast.

Addresses

6. On his address to the court when allocutus was administered to him, the prisoner said he is sorry for what he did to his daughter. He said sorry to his family including the victim, to his community and to the State. On behalf of the prisoner, Ms. Maliaki submitted in favour of the prisoner that the court should consider the accused background circumstances such as the prisoner’s co-operation with the police during investigation, and he has got a large family of ten children including the victim. Counsel submitted that the circumstances in the case of The State v Hosea Wartovo (30.3.07) CR.N0.693 of 2006 a case by His Honour Sevua J; was more serious than the facts of the present case because in that case there were elements of violence and force whereas in the instant case, no violence was involved. In that case the prisoner was sentenced to cumulative and concurrent terms of 28 years for eight counts of incestuous relationship with his daughter A.W. Ten years were deducted due to old age. The custody period was deducted and he is serving 16 years 10 months and 2 days in light labour imprisonment.

7. For the State, Mr. Rangan submitted that the instant case involves circumstances of aggravations such as there was breach of trust involving the prisoner and his daughter and secondly that, the victim gave birth to a child as the result of the accused’s incestuous relationship with the victim. Counsel submitted that, any penalties to be imposed should reflect the concern of all communities in this Province over the increasing sexual offences being freely committed.

LAW

8. The accused is charged pursuant to s.223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The maximum penalty prescribed by Subsection (1) of the Section is an imprisonment term of seven (7) years. Subsection (2) of the section defines ‘close blood relative’ in the following words:

“For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or half sister), grandparent, grandchild, aunt , uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption.”

9. The offence of incest is punishable by an imprisonment term of not more than seven (7) years. Like any offences committed against the above Act, there are a number of aggravations involved. At the time the accused committed the offence, the victim was 16 years while the accused himself was about age 40. He is now at the age of 45 years. Another aggravation was there was a very big age deference between the prisoner and the victim.

10. Let the court start with the premise that the crime of incest is evil and it is an offence against one’s one child if committed by the father or mother of a child affected or between brothers and their sisters. The case of The State v Mitige Neheya [1888-89] PNGLR 174 establishes that incest is a violation of the most fundamental principle of the ‘sacred trust’ that a child has in his father or mother. The offence infringes and violates the fundamental duty of the father and mother to care for their children and rear them up in the manner expected by the Constitution and the law. The above case sets out appropriate sentencing guidelines in incest cases.

11. With respect, I am of the view that, the guidelines set there may be outdated because the decision was decided some seventeen years ago and just as the Supreme Court commented in Public Prosecutor v Don Hale (1998) SC 564 that crimes of armed robbery are prevalent, the sentencing tariff in Gimble v The State [1988-89] PNGLR 271 should be reviewed to cater for the up-surge of that crime in our time, so are sentences for sexual offences. Sentences for sexual cases should be raised to cater for the violence associated with sex at our present time. I would agree with Mr. Rangan that incest and of course other sexual cases are quite prevalent in this Province.

12. In the present case, the accused breached the trust existing between him and his daughter. In time of trouble and danger the accused is expected to provide refuge and safety to the victim and the breach he caused is very severe indeed. Such breach can cause great havoc in your family ties first with your wife, then with her uncles then of course the extended family ties that are commonly practiced in Papua New Guinea. This is despite the fact that the mother of the victim comes from Gulf Province. As already noted the accused is the biological father of the victim. The definition of “relationship of trust, authority and dependency” is defined in s.6 (1) (2) (a) to (h) and described the nature and closeness of such relationship in the following terms:

“(1) When the term relationship of trust, authority or dependency” is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A “relationship of trust, authority or dependency” includes, but is not limited to, circumstances where -

(a) the accused is a parent, step-parent, adoptive parent or guardian of...