The State v Francis Angosiwen (No 2) (2004) N2670

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 June 2004
• Citation: (2004) N2670
• Court: National Court
• Year: 2004
• Judgement Number: N2670

Full Title: The State v Francis Angosiwen (No 2) (2004) N2670

National Court: Kandakasi J

Judgment Delivered: 21 June 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Parliament reducing penalty despite prevalence of offence—Effect of—Court legally bound to proceed on assumption that Parliament makes no mistake—Court has discretion to impose maximum prescribed penalty in appropriate cases—Criminal Code s19 and s223.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Indictments and sentences—Indictment presented for less serious offence in terms of penalty when facts discloses more serious offence—Unless exceptional circumstances exist no need to further reduce sentence under less serious offence.

3 CRIMINAL LAW—Incest by father against biological daughter—Offence committed in circumstances amounting to rape—Use of knife to threaten and secure sexual penetration—Sentences for rape in similar circumstances considered—Guilty plea by first time offender—No physical injuries to victim—Factors in aggravation outweighing factors in mitigation—Maximum sentence imposed—Criminal Code s223 and s347.

4 The State v Francis Angowisen (No 1) (19/06/04) N2669, The State v Douglas Natilis (Unreported and Unnumbered judgments, 2004), 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 referred to

Decision On Sentence

___________________________

N2670

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1406 of 2000

THE STATE

-V-

FRANCIS ANGOSIWEN

(No.2)

WEWAK: KANDAKASI, J.

2004: 21st June

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Parliament reducing penalty despite prevalence of offence – Effect of – Court legally bound to proceed on assumption that Parliament makes no mistake – Court has discretion to impose maximum prescribed penalty in appropriate cases - Criminal Code ss. 19 and 223.

CRIMINAL LAW – PRACTICE & PROCEDURE –Indictments and sentences – Indictment presented for less serious offence in terms of penalty when facts discloses more serious offence – Unless exceptional circumstances exist no need to further reduce sentence under less serious offence.

CRIMINAL LAW – Incest by father against biological daughter – Offence committed in circumstances amounting to rape – Use of knife to threaten and secure sexual penetration - Sentences for rape in similar circumstances considered - Guilty plea by first time offender –No physical injuries to victim – Factors in aggravation outweighing factors in mitigation – Maximum sentence imposed – Criminal Code ss. 223 and 347.

Cases cited:

The State v. Francis Angowisen (No.1) (19/06/04) N2669.

The State v. Douglas Natilis) N….

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.

Counsels:

J. Wala for the State

L. Siminji for the Accused

21st June 2004

KANDAKASI J: On 18th this instant the Court found you guilty on one charge of incest against your own biological daughter. The facts are fully set out in the judgment on verdict (The State v. Francis Angowisen (No.1)). However, for the purposes of sentencing, I note the following facts are relevant.

On the day of the offence, you took the victim and two other children to the garden. You left the other children at a sago palm, which you cut down earlier and tricked the victim into looking for birds eggs that never existed to a different location. There, you threatened her with a knife, and told her to take her trousers off and she complied out of fear of being hurt, while you removed yours and proceeded to have sexual intercourse with her. After you finished having sex with her, you threatened and told her not to report the incident to anyone, saying you would kill her if she did. You then forced her to go and take a bath and she did as you threatened to hurt her with the knife. She suffered a crack to her vagina.

On this facts, you raped your own daughter. Instead of charging you with rape, the State for reasons not disclosed to the Court, you were charged with incest.

Section 223 of the Criminal Code as amended creates and prescribes the penalty for the offence of incest. Presently the penalty is 7 years maximum, which is a reduction from an original prescription of life imprisonment. I fully discussed the effect of this and the sentencing tariffs in the decision I just handed down in the matter of The State v. Douglas Natilis) N…... I wish not to repeat it except only to summarize what I said in that case.

There, I said Parliament has apparently made an obvious...