The State v Paul Patrick

• Jurisdiction: Papua New Guinea
• Judge: Toliken J.
• Judgment Date: 07 April 2016
• Citation: (2016) N6438
• Court: National Court
• Year: 2016
• Judgement Number: N6438

Full : CR No 198 of 2016; The State v Paul Patrick (2016) N6438

National Court: Toliken J.

Judgment Delivered: 7 April 2016

N6438

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 198 OF 2016

THE STATE

V

PAUL PATRICK

Misima : Toliken J.

2016: 07th April

CRIMINAL LAW - Sentence - Incest - Between first cousins - Plea - Mitigating factors - First time offender - Early plea - Co-operated with police - Relationship not very close - Prisoner sustained injuries in motor vehicle accident while in custody of the State - Complete removal of spleen - Medication for life - Aggravating factors - Complainant 17 years old - Relationship subsisted for over 2 years - Complainant became pregnant - Prevalence of offence - Matters raised in allocutus - Prisoner denies fathering second child born to complainant - Prisoner says relationship consensual - Not negatived satisfactorily by State - Applied to benefit of Prisoner - Appropriate sentence - 4 years less period in custody - Criminal Code Ch. 262, s 223.

CRIMINAL LAW - Sentence - Whether to suspend - Principles on suspension considered - Suspension not appropriate - Prisoner's need for regular supply of medication considered - Best served if prisoner serves full term of resultant sentence in Giligili - Recommendation for transfer to Misima on completion of Renovations to Rural Lock-up.

Cases Cited:

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

Goli Golu v The State [1979] PNGLR 653

Mitige Neheye v. The State [1994] PNGLR 71

Public Prosecutor v Done Hale (1998) SC 564

Public Prosecutor v Bruce Tardrew [1986] PNGLR 91

Saperus Yalibakut v The State (2006) SC 890

The State v Jonathan Kainamale; CR No. 722 of 2014 (Unnumbered and unreported judgment dated 12th February 2016)

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

The State v Jimbe(2012) N5161

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

The State v Mandari (2007) N4969

The State v Philipo (2014) N5746

The State v Samuel Kawar (2011) N4234

The State v Sevi Kwetok (2011) N3389

The State v. Tikiria Amos (2005) N2614

Counsel:

H Roalakona, for the State

C Kambua, for the Prisoner

SENTENCE

07th April, 2016

1. TOLIKEN J:Paul Patrick, this morning you pleaded guilty to an indictment charging you with one count of incest - sexual relations between close blood relatives - an offence under Section 223 (1) of the Criminal Code Ch. 262 (the Code).

2. You were charged that on an unknown date between 2010 and 2013 at Kimbepwap village, Rossel Island, Milne Bay Province you engaged in an act of sexual penetration with a close blood relative that is your first cousin Jill John (the complainant).

THE FACTS

3. The brief supporting facts which you admitted and upon which I m going to sentence you are these. You and the complainant Jill John are first cousins in that your fathers are biological brothers. On an unknown date in 2010, you commenced a sexual relationship with the complainant. As a result of this relationship the complainant gave birth to a baby girl in 2012. In 2013 the complainant gave birth to a second child and as a result you were reported to the police and subsequently charged.

THE OFFENCE

4. The offence of incest is provided by Section 223 of the Criminal Code (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. While the maximum penalty is 7 years, this, however, does not mean that you will be sentenced to 7 years imprisonment. This is because the maximum penalty for any offence is always reserved for the worst of cases. Furthermore, what the sentence will be will depend entirely on the merits and the peculiar circumstances of each case and the circumstances of the offender. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92)

SENTENCING ISSUE(S)

6. I must therefore determine a sentence for you that is appropriate to the circumstances of your case. To do this 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. Lastly I must then decide if your sentence, or any part of it should be suspended.

ANTECEDENTS

7. You are 26 years old and come from Kimbepwap village, Rossel Island, Samarai-Murua District in the Milne Bay Province. You are married with three children. You come from a family of seven siblings of which you are the third born. Both your parents are still alive. You are a Roman Catholic and have been educated up to Grade 8 only. You have never been formally employed - hence you are a simple subsistence villager. You have been in pre-trial custody for a period of nine months and three weeks since you were arrested on 17th June 2015.

ALLOCUTUS

8. When invited to address the Court before sentence you made the following statement:

a) I stand before the eyes of God and the Court. I would like to say sorry to God, to the State and to the victim’s family for committing this offence. You Honour, I am a married man with a legal wife and four children. All my life I knew nothing about incest. Jill John comes from a family of incest. They caused some incest problem before which [disrupted] my family relations and I was involved in this incest problem in 2010. Unfortunately, there were no threats. It was according to the will. This led to the first child.

b) I went through several mediations and I was then sent to Tagula Government Station for the Government Officers to look into the case. They strongly warned me and told me to stop totally and they told me to pay maintenance for the first child.

c) The second child, born in 2014, I had nothing to do with it. Because I was involved with the first child, the blame for the second child was put on me. I asked for mediation to tell the community and the leaders that I was not responsible for the second child. No-one stood by my side. So the report was given to the Police by the victim's father. I was arrested on 17th June 2015 and brought to Bwagoaia Police Station. On 23rd June 2015 I was taken to Alotau Police Station. On 07th July 2015 I was formally charged and appeared in court and then sent to CIS.

d) During one of the mentions, I was involved in an accident involving a State vehicle in which I sustained a broken spleen and ended up at the General Hospital. I was given an operation where a 25cm cut was made from my chest to my belly button. The Doctor advised me and according to my medical report I will stay nearly all my life on medication.

e) Therefore, I now ask for your mercy. If there is any possibility … I can go to the village for my family to look after me. That is from me and may God bless you."

SUBMISSIONS

9. Your lawyer Ms. Kambua submitted that an appropriate sentence for you should be 4 years imprisonment which she said should then be wholly suspended. This is because this is not a worst case of incest. She said that this was a consensual relationship between adults - you and your cousin sister - which when it became known to your respective parents and community leaders resulted in your being sent to Tagula Government Station for disciplinary purposes. She said your relationship stopped in 2013, but when the complainant became pregnant again in 2014 her parents thought that you were responsible for that as well, so you were reported to the police.

10. Ms. Kambua cited several mitigating factors in your favour, though, she did concede that a child was born to this relationship and the offence is prevalent. Counsel also cited a few cases which she said could assist me in arriving at an appropriate sentence for you. I will come to these later in this judgment. Finally counsel submitted that any matters you have raised in your address to the Court that the State does not negative or dispute should be applied to your benefit.

11. Ms. Kambua finally brought to the Court's attention an affidavit which you filed this morning in support of the injuries you suffered in the accident you referred to in your address to the Court. The Medical Report annexed to your affidavit shows that you were involved in a motor vehicle accident on 09th November 2015 and taken into the Emergency Department of the Alotau General Hospital in severe haemorrhagic shock. After fluid resuscitation, you immediately underwent an operation to remove your spleen. (Splenectomy) While you recovered eventually and were discharged on 16th November 2015 you will be on life-long medications to prevent...