The State v James Donald Keimou (2001) N2295

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 12 October 2001
• Citation: (2001) N2295
• Court: National Court
• Year: 2001
• Judgement Number: N2295

Full Title: The State v James Donald Keimou (2001) N2295

National Court: Kandakasi J

Judgment Delivered: 12 October 2001

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sexual offences—Past sentences not deterring—Offences on the increase—Need for stiffer penalties—Sentencing discretion under s19 of the Criminal Code—No expressed statutory prohibition against "quantum leaps" or "disparity of sentences between co–accused"—Calls for review of sentences repeatedly made with a view to increasing sentence but no substantial increase made—A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case even if it is a quantum leap—Criminal Code s19

2 CRIMINAL LAW—Incest by male—Natural father having continuous sexual relations with two of his natural daughters over a period of years—Victims falling pregnant with the eldest twice and both giving birth to a total of three children—Worse type of incest by man—Guilty plea—No good mitigating factors—No genuine expression or show of remorse—Life imprisonment imposed—Criminal Code s223.

3 The State v Mitige Neheya [1988–89] PNGLR 174, The State v Arthur Maradi Tamti (1999) N1878, Grayson Andowa v The State (1998) SC576 and The State v Eddie Peter (No 1) (2001) N2296 referred to

___________________________

N2295

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 430 of 1999

THE STATE

-V-

JAMES DONALD KEIMOU

ALOTAU: KANDAKASI, J.

2001: 10th & 12th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Sexual offences - Past sentences not deterring – Offences on the increase – Need for stiffer penalties – Sentencing discretion under s. 19 of the Criminal Code – No expressed statutory prohibition against “quantum leaps” or “disparity of sentences between co-accused” – Calls for review of sentences repeatedly made with a view to increasing sentence but no substantial increase made – A sentencing judge should be at liberty to impose sentences he or she considers appropriate in the particular circumstances of a case even if it is a quantum leap – Criminal Code s. 19

CRIMINAL LAW – Incest by male – Natural father having continuous sexual relations with two of his natural daughters over a period of years – Victims falling pregnant with the eldest twice and both giving birth to a total of three children – Worse type of incest by man – Guilty plea – No good mitigating factors – No genuine expression or show of remorse – Life imprisonment imposed – Criminal Code s. 223.

Cases cited:

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

The State v. Arthur Tamti (unreported judgement 30/08/99) N1878

Grayson Andowa v. The State (unreported judgement (01/10/98) SC576

The State v. Eddie Peter (unreported and unnumbered judgement delivered 12/10/01)

Counsel

K. Popeu for the State

D. Kari for the Accused

DECISION ON SENTENCE

12th October, 2001

KANDAKASI, J: You pleaded guilty to two separate counts of incest against your first and second natural daughters contrary to s. 223 of the Criminal Code (“the Code”) from 1991 to 1996 with the second daughter and from 1993 to 1997 with the first born daughter.

The facts are straightforward. Your are the natural father of the two daughters, who I will just identify as first born and second born respectively to avoid causing further shame and harm. You started having sexual intercourse with your second born in 1991 when she was in grade 6, while your sexual relations with the first born started in January 1993, when she was home on school holidays.

According to the evidence of the first born, you first had sexual intercourse with her by tricking her. You told her, there was an evil spirit following her and that if you were allowed to have sexual intercourse with her, the evil spirits will run away and will not follow her. So she allowed you to have sex with her. At that time, she was in grade 7. Then in 1993, when she came home after having completed grade 10, you again came up with the same story and continued to have sexual intercourse with her on many occasions sometimes in the house sometimes during day times and other times in the night. You also had sexual intercourse with her in the bushes, the beach and rivers. You convinced her that she would not become pregnant as you claimed you were sterile. Unfortunately, she became pregnant and gave birth to a female child. That did not stop you, you continued in your sexual relations with your first daughter and that result in another child this time a boy being given birth to.

At the same time unbeknown to each other, that is the sisters (your daughters or the victims), you continued to have sexual relations with the second born and that resulted in her pregnancy and the eventual birth of a male child. Both your daughters were too scared of you and were not able to report what you did to them to your wife and their mother or anybody else even when they became pregnant and gave birth to their respective children.

In your record of interview with the police, you tried to put the blame on your wife, for saying these daughters were not yours due to problems between you and your wife. But you failed to disclose what those problems were. You also claimed that you asked your daughters to have sex with you and they agreed. This could only be right given your tricks of evil spirit and the daughters being small and vulnerable when you first started it off. These are not one or two isolate incidents. They went on for a number of years.

The girls now have no boyfriend and therefore have no chance of marrying anyone who is prepared to take them with the babies you gave them. Their future as female humans with a right to live free and ordinary lives have been greatly jeopardized for them by the very person of all people that should be encouraging and supporting them in that regard.

What you did was against the law, your daughters, and your family, your community and country. The law prohibiting what you did is set out in section 223 of the Code. That section reads:

223. Incest by man.

(1) A person who carnally knows a woman or girl who is, to his knowledge—

(a) his daughter or other lineal descendant; or

(b) his sister; or

(c) his mother,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

…

(3) It is immaterial that the carnal knowledge was had, or that the attempt was made, with the consent of the woman or girl.

This section clearly prohibits a man from have sexual intercourse with a person he knows to be his daughter, sister or mother or any other lineal descendant. It does not matter if the victim is a willing participant; incest is an offence even between willing participants. The main reason for this prohibition, apart form the scientific reasons, is to maintain the security, love, respect, honour, trust, happiness, peace and joy of the family unit and blood relations for a better and stronger family, community and a nation. As your lawyer submitted, the case of The State v. Mitige Neheya [1988-89] PNGLR 174, suggests the following guidelines (from the head notes) for sentences for this offence:

“(1) Because the offence involves unlawful sexual intercourse, a maximum term of life imprisonment and consent is immaterial, the principles of sentencing for the offence of rape should be applied.

John Aubuku v The State [1987] PNGLR 267, considered.

(2)

(a) On a plea of not guilty where the accused is a mature person and there are no aggravating or mitigating circumstances, a sentence of five years should be taken as the starting point;

(b) The sentence may be increased for aggravating circumstances such as: physical or psychological damage to the victim; resulting pregnancy and infection of the victim with sexually transmitted diseases;

(c) The lower range of sentences should be reserved for young offenders where...