The State v Jonathan Kainamale

• Jurisdiction: Papua New Guinea
• Judge: Toliken J.
• Judgment Date: 12 February 2016
• Citation: (2016) N6436
• Court: National Court
• Year: 2016
• Judgement Number: N6436

Full : CR 722 of 2014; The State v Jonathan Kainamale (2016) N6436

National Court: Toliken J.

Judgment Delivered: 12 February 2016

N6436

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 722 OF 2014

THE STATE

V

JONATHAN KAINAMALE

Alotau : Toliken J.

2015 : 07th December

2016 : 12th February

CRIMINAL LAW – Sentence – Incest – Five Counts –Plea –Father/biological daughter relationship – Offence occurred over period of just over one week - Not worst offence – Mitigating and aggravating factors consider - Purposes of Sentence - Deterrence and separating offender from victim - Notional total sentence of 25 years - Concurrent sentence appropriate in circumstances - Sentence of 6 years less period in pre-trial custody - No suspension - – Criminal Code Ch. 262, s 223

Cases Cited:

The following cases are cited in the judgement:-

Aihi v The State (No. 3) [1982] PNGLR 92

Golu v The State [1979] PNGLR 653

MitigeNeheye v. The State [1994] PNGLR 71

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

The State –v- Douglas Natilis(unreported and unnumbered judgement (2004)

The State v Jimbe(2012) N5161

The State v. Tikiria Amos (2005) N2614

The State v Mandari (2007) N4969

Counsel:

H Roalakona, for the State

P Palek, for the Accused

SENTENCE

12th February, 2016;

1. TOLIKEN J: Jonathan Kainamale, on the 07th of December 2015 you pleaded guilty to an indictment charging you with five counts of incest thereby contravening Section 223 (1) of the Criminal Code Ch. 262.The charges are that -

Count one: "... that on 5th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Two: "... that on 07th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Three: "... that on 09th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Four: "... that on 10th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

Count Five: "... that on 13th day of November 2013 at Vakuta Island ... [you] engaged in an act of penetration with a close blood relative one Judy Kainamale being [your] biological daughter."

THE FACTS

2. The following facts were put to you on arraignment which admitted. I am going to sentence you these facts. On the 04thNovember 2013, you and your biological daughter Judy Kainamale travelled to Vakuta Island, Kiriwina to sell betelnut. While at Vakuta you were accommodated by one Simon and his family. The two of you slept in one room.

3. During the night of Tuesday 05th of November 2013 you sexually penetrated your daughter. You then again sexually penetrated her on Thursday 07th November, Saturday 9th November, Sunday 10thNovember and lastly on Wednesday 13th November after which the two of you returned home to Esa'ala.

4. Your sexual relationship with your daughter became known when she told her teachers about it, after they had questioned her why she had returned late to school. The matter was then reported to the police resulting in your arrest.

THE LAW

5. The offence of incest is provided by S. 223 of the criminal Code Act (as amended). It says:

223. Incest

(1) A person who engages in an act of sexual penetration with a close relative is guilty of crime.

Penalty: Imprisonment for a term not exceeding 7 years.

(2) 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.

(3) ...

5. This, however, does not mean that you will be sentenced to the maximum period of 7 years for each count. This is because the maximum penalty for any offence is always reserved for the worst type of cases. Furthermore, what a sentence will be will depend entirely on the merits and the peculiar circumstances of each case. (Golu v The State [1979] PNGLR 653; Aihi v The State (No. 3) [1982] PNGLR 92)

SENTENCING ISSUE (S)

7. I must therefore determine a sentence for you that is appropriate to the circumstances of your case. To do that, I must determine firstly whether or not your case falls within the worst category of incest. If I find that it is, then I have the discretion to impose the maximum. If not then I can impose a lesser penalty.

ANTECEDENTS

8. You are 50 years old and come from East Waluma village, Ferguson Island, Esa'ala District of the Milne Bay Province. You are now 50 years old and married with eight children. You yourself are the second born in a family of five. Your father is now deceased but your mother is still alive. You are a member of the United Church. You have an 8th Grade education but have never been formerly employed, though, prior to your arrest you were a Ward Recorder in the Dobu Local Level Government Council. This is your first offence, At the time of your conviction last December you had been in custody 1 year 11 months and 3 weeks.

ALLOCUTUS

9. In a prepared Statement which you read to the Court you said the following:

I Jonathan Kaninamale, I would like to confess before God, for he is holy, righteous, pure and just. I have broken the law on sexual offence with my biological daughter Judy Kainamale. I also confess in the presence of this Court and Court officials and to the State for [breaching] of the law of my country PNG, and my victim Judy K and my families for the offence I have done to her.

Your Honour, I Jonathan Kaimale of Alageda village, Waluma East Ward, Dobu LLG in Esa'ala District, I was charged under incest for doing sexual penetration with my daughter Judy Kainamale on my request and her agreement in early November 2013 at Kiriwina on Vakuta Island.

With this short confession I humbly apologise to the Court and the Police for your time in my case. I also apologise to the State, my country PNG and my community in the society for breaching the State laws of my country.

Finally I apologise to my victim Judy K and families for the offence I committed to her and I want to say that I am very very sorry for what I have done.

On the brief history of how the offence started, when she was doing her schooling [while] with my sister Flora she got pregnant. With this if it pleases your Honour to grant my humble request. And my wish is that this Court gives me mercy and pardon and discharge me to go home on the following reasons -

1. I was the only one in our village who supports two families, in finance side and other family matters and problems arising in our village. No.1 family - My wife and children who always come to the Corrective Institution when they face problems and for information they want to know. No. 2 Family - My old mother with two sisters in the village. My brother is a Pastor and went out for his work. One of my sister's husband died and my three nephews are still schooling.

2. My victim Judy is doing Grade 11 next year. She asked me if I could support her in some of her needs for school.

3. Finally plead to the court if it can give me probation or good behaviour bond so that I could serve my time at home and pay compensation to my victim and families.

With these I now promise to this Court that I will not do any offence such as this in my life time again. Thank you...

SUBMISSIONS

10. Your lawyer Mr. Palek submitted that your case cannot be consider a worst instance of incest though he conceded that it involved a serious breach of trust, that there is a huge age difference between the two of you - you were 49 years old and the complainant was only 17 years old. He said after the complainant became pregnant she was shunned by her mother and other siblings. You were the only one supporting her and as a result the two of you consequently became very close resulting in the sexual relationship between the two of you. You, however, had the complainant re-enrol in school and at the time of your conviction she was doing Year 10 at Hagita Secondary School. Mr. Palek said that while your action cannot be excused there are significant mitigating factor (I will refer to this later) and therefore your sentences should be in the between 4 - 6 years to be served concurrently. Counsel then invited the Court to consider suspending part of your sentence and place you on probation.

11. Ms. Roalakona on the other hand, in behalf of the State submitted that an appropriate sentence for you should be between 5 - 7 years. This because of the prevalence of...