The State v Sevi Kwetok (2006) N3389

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 09 November 2006
• Citation: (2006) N3389
• Docket Number: CR N0. 1474 OF 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3389

Full Title: CR N0. 1474 OF 2005; The State v Sevi Kwetok (2006) N3389

National Court: Kandakasi, J

Judgment Delivered: 9 November 2006

N3389

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1474 OF 2005

THE STATE

-V-

SEVI KWETOK

Tabubil: Kandakasi, J.

2006: 7th and 9th November

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Particular offence – Incest - Cousin brother against cousin sister – Child born out of sexual relationship – Guilty plea – First time offender – Serious offence but down grade by Parliament – Offence still prevalent - 5 years in hard labour imposed – Section 223 Criminal Code

Cases cited:

The State v. Douglas Natilis (Unreported and Unnumbered judgment, 2004)

The State v. Francis Angosiwen (No 2) (21/06/04) N2670.

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.

The State v. Tikiria Amos (19/09/05) N2614.

Mitige Neheye v The State; Martin Gawi v The State [1994] PNGLR 71.

Counsel:

D. Mark, for the State.

P. Kapi, for the Prisoner.

9 November, 2006

1. KANDAKASI J: You pleaded guilty to one charge of incest contrary to s. 223 of the Criminal Code as amended. After having administered your allocutus and receiving submissions of counsels, I reserved a decision to today. This is now the decision of the Court.

Relevant Facts

2. The facts on which you pleaded guilty to are these. On 12th December 2005, you approached the victim of your offence, LL at her parents’ house, house number 3 here in Tabubil. Her parents, who are your uncle and aunt, went to watch a game at around 1 and 2 pm. You used to go to your uncles place and on the day of the offence, you entered the house. When in the house, you went to the victim’s room and entered it without her invitation. She was in her room. Once in her room, you asked to have sexual intercourse with her and you proceeded to remove her clothes. Other evidence in the court file show that you had sexual intercourse with her without her consent, meaning you raped her. Earlier on, you failed to secure her agreement to having sexual intercourse with you. You threatened to kill the victim if she reported you to her parents or anybody else. The victim was therefore very scared and did not inform any one until April of this year. Out of the sexual intercourse between you and your biological cousin, she became pregnant and gave birth to a child.

Address on Sentence and Submissions

3. In your address on sentence, you said sorry for what you have done. You also said sorry to the victim and her relatives as well as your relatives for committing the offence against them.

4. Your lawyer added that, you are about 18 years old now and 17 years old at the time of you committing the offence. The victim of your offence was around 15 heading 16 years old at the time of the offence. You come from Angkmp Village, Telefomin, Sandaun Province. You are single and you are the father of the child your offence’s victim has delivered. You are the first born out of two brothers and one sister. Education wise, you have completed grade 10 at Don Bosco High School in Vanimo. In terms of employment, you have no formal employment. Since your arrest on 25th July 2006, you have been in custody to the present day.

5. In his submissions, your lawyer urged the Court to take into account your guilty plea and being a first time youthful offender. He then submitted that the Court should impose a sentence close to the maximum sentence, appreciating the fact that the offence of incest is serious and is a prevalent offence. The State’s submission picked up on that and submitted that, you should be given a sterner sentence because of the seriousness of the offence. Both counsels agree that the offence you committed is very serious but the Parliament in its wisdom downgraded the offence in terms of its penalty from a previous maximum sentence of life imprisonment to only 7 years now. They also agreed that, that went against even the Court’s imposition of sentences beyond 7 years previously.

Offence and Sentencing Trend

6. 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 State v. Douglas Natilis

i (Unreported and Unnumbered judgments, 2004).

i1 and summed up that discussion in the case of The State v. Francis Angosiwen (No 2).

ii (21/06/04) N2670.

ii2

7. There, I said Parliament has apparently made an obvious mistake or was led to make a mistake in reducing the penalty provision for a number of reasons. First, the offence of incest is a very serious offence because it destroys a sacred trust between close relatives. Secondly, it is an offence that is prevalent and on the increase. Thirdly, given the seriousness and its prevalence, the Courts have imposed sentences beyond 7 years. Such sentences range from 10 years as in The State v. Amos Audada

iii (13/05/03) N2454.

iii3 and 17 years cumulative for 9 counts of incest as in The State v. Eddie Sam.

iv (03/02/04) N2521.

iv4 They even reached life imprisonment as in The State v. James Donald Keimou,

v (12/10/01) N2295.

v5 for repeated acts of incest by a natural father against two daughters with a total of three children being born to the daughters. Finally, this change in the penalty does not accord well with the reasons for the recent amendments to the Criminal Code particularly, those provisions dealing with sexual offences against children, which increased sentences and made it easy to get a conviction in these kinds of offences.

8. I have now come to the decision of my brother Sevua J., in The State v. Tikiria Amos,

vi (19/09/05) N2614.

vi6 where His Honour expressed similar views. There, His Honour said:

“Whilst I do not question the function and power of Parliament, I question the wisdom of every person involved in the amendment. Incest is a very serious crime. It drives a wedge between families and creates great disharmony within a family unit. It breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty. Yet the people behind such legislative changes had seen fit to disregard the interest and welfare of young daughters and their sufferings. It simply means that Parliament thinks female children or daughters are no longer important so that if they are abused or molested by their fathers or brothers, the penalty is a mere maximum of 7 years.

I consider this to be quite ridiculous and stupid because in my view, there is no longer a protection over young daughters, who in many reported and unreported cases, have been sexually abused and molested by their own fathers. Incest, committed without consent or by force amounts to rape therefore the sentence for rape is valid. Given that well preserved principle of law, it is quite a farce, to say the least, for Parliament to downgrade this crime and reduce the maximum penalty to a mere 7 years.”

9. Both in the Douglas Natilis and the Francis Angosiwen cases, I said Parliament made a grave mistake and noted that, there is no power in the Court to correct this apparent mistake. That power belongs to Parliament. As such, all that the Court can do is to recommend to Parliament to reconsider the penalty provision with a view to restoring the previous penalty of life imprisonment or prescribe a sentence closer to it.

10. Meanwhile, I held that, the Court must apply the current provisions as they are, proceeding on the basis that Parliament did not make any mistake. Accordingly, I held further that, the sentencing guidelines as set by Mitige Neheye v The State; Martin Gawi v The State,

vii [1994] PNGLR 71.

vii7 continue to apply but with some variation to reflect the reduction in the penalty. These guidelines suggest that, if the circumstances in which the offence was committed constitutes rape, then the sentence must proceed as in a rape case.

11. Going by those guidelines, I noted that, sentences for simple cases of rape on guilty plea attract sentence between 13 years and 17 years. I then held that, because of the penalty provision as they are in incest cases, the Court cannot impose a sentence beyond the maximum prescribed of 7 years. In arriving at that view, I noted that, it is now almost settled law that where an indictment for a lesser offences is presented when the facts support an indictment for a serious offence, the Court should not further reduce the prescribed maximum sentence as in this case, 7 years, except where “very good mitigating factors exists.”

12. Then in view of the sentences imposed for rape cases and noting that no other very good mitigating factors existed that warranted a further reduction in the sentence, I imposed the maximum prescribed sentence of 7 years. In so doing, I noted that the sentence accommodated and reflected the seriousness of the offence, the prisoner’s guilty plea and that he was a first time offender.

13. The Douglas Natilis and the Francis Angosiwen cases, were incest by fathers...