The State v Spangie Jimbe (2012) N5165

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 02 November 2012
• Docket Number: CR 361 OF 2008
• Citation: (2012) N5165
• Court: National Court
• Year: 2012
• Judgement Number: N5165

Full Title: CR 361 OF 2008; The State v Spangie Jimbe (2012) N5165

National Court: Toliken AJ

Judgment Delivered: 2 November, 2012

N5165

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 361 OF 2008

BETWEEN

THE STATE

V

SPANGIE JIMBE

CRIMINAL LAW – Sentence – Incest – Brother/Step-sister relationship – Plea of guilty – Certain degree of consent – Prior conviction of unlawful carnal knowledge of same victim – Two children born to incestuous relationship – Worst offence – Maximum penalty of 7 years imposed – Criminal Code Ch. 262, s 223

Cases Cited:

The following cases are cited in the judgement

State-v- MKB [1976] PNGLR 197

Mitige Neheye 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. Tikiria Amos (2005) N2614

The State v Michael Siwir (2006) N3382

The State v Sevi Kwetok (2006) N3389

The State v. Tom Feri (2008) N3305

The State v. Samuel Kawar(2011) N4234

Counsel:

M. Ruarri and D. Kevin, for the State

A. Ninkama and D. Sopane , for the Accused

SENTENCE

02nd November, 2012

1. TOLIKEN AJ: Spangie Jimbe, on the 13th August 2012 you pleaded guilty before me to one count of incest. I was satisfied after I had read the material in your committal file that the evidence supported your plea and accordingly confirmed it. I wasn’t able to pass down my sentence then. I do so now.

THE FACTS

2. The facts on your case are very brief. Between the 1st of January 2007 and 31st of September 2007 at East Ambogo Block, you sexually penetrated your half sister Nosick Jimbe. You were in fact living in some sort of a marital relationship. It seems that you took your sister away from your elder brother soon after you were released from jail after serving a sentence for a previous charge involving the same victim. You impregnated your sister and she gave birth to your child in September 2007. Your elder brother was not happy about this because even though you and Nosick have different mothers you have one father only. So he reported you to the police and you were accordingly charged with incest.

ANTECEDENTS

3. You are 35 years old and come from Manganjuji village, Finchafen, Morobe Province. You are a member of the Lutheran faith. You are married with 3 children. You were living at East Ambogo Block before your arrest for this offence. You have oil palm blocks there from which you sustain yourself.

You have no formal education and are an unsophisticated villager. You have been previously convicted for the unlawful carnal knowledge of the same victim and were sentenced to a term of 4 years on the 26th May 2003.

ALLOCUTUS

4. You apologised to the court for your offence. You asked the court to be merciful on you because you have left behind a lot of properties and your children, who, are not in school now. You said that you have been in custody since 8th October 2007.

SUBMISSIONS

Defence Counsel

5. Your lawyer Mr. Ninkama submitted that your case falls nearly within the worst case category not only because the victim is your half sister but also because you have been imprisoned already for the similar offence against her. He submitted also that there is need for deterrence and separation because your offence, as he put it, is “against the order of nature and society”. He, however, said that there was an element of consent in your case so it was not as if you raped your step-sister too. Furthermore, you have already served a considerable period in pre-trial custody and he asked that this be appropriately taken into account. He said further that this period had been sufficiently reformative and rehabilitative for you and effectively separated you from the victim. He therefore suggested a period of 4-6 years less the period spent in custody which he further submitted should be wholly suspended with conditions that you will not deal with the victim and that you can keep the peace.

6. Counsel also referred me to cases which he said should guide me in arriving at an appropriate sentence. The State v. Daniel Kawar(2011)N4234; State v. Sevi Kwetok (2006)N3389; The State v. Tom Feri (2008)N3305)

Counsel for State

7. Mr. Ruarri for the State submitted that you have one prior conviction of unlawful carnal knowledge of the same victim. He said that out of that, the first child of the victim was born. A second child was born as a result of the subsequent incest for which you are now before the court.

8. He referred me to the case of Mitige Neheye v. The State [1994] PNGLR 71 where the Supreme Court set down sentencing guidelines for the crime of incest. He also referred to the following cases: - The State –v- Michael Siwir (2006) N3282(adult male/niece-6 years); The State-v-Sevi Kwetok (supra) (cousin brother/sister-5 years); The State –v- Francis Angosiwen(2004) N 2670-father/daughter- 7 years). Because this is not your first offence against your half sister counsel submitted that a deterrent sentence should be imposed.

THE LAW

9. The offence of rape 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) ...

9. The crime of incest is a serious attack on societal norms and morals and more so the family unit. As noted by this court on the State-v- MKB [1976]PNGLR 197, the true rational of the criminal law in respect of incest is to enforce our moral values and beliefs and therefore sentences given to offenders must reflect these and the public’s abhorrence of the offence.

10. Sevua J. aptly described the crime of incest as driving a wedge between families and creating great disharmony within a family unit and that it breaks up marriages and sends children and mothers away from the matrimonial home, perhaps for some, into poverty: The State v. Tikiria Amos (2005) N2614. The crime of incest was once punishable by life imprisonment. Parliament, however, despite the ever increasing occurrence of the offence, in its wisdom, reduced the penalty to the current 7 years (Sexual Offences and Crimes Against Children) Act 2002(No.27 of 2002) s. 13).

11. This has attracted judicial comment by judges of this court, notably by their Honours Sevua J. (as he then was) and Kandakasi J. Kandakasi J. went to the extent of saying that Parliament had made a mistake in doing so: The State v. Tikiria Amos (2005) N2614; The State –v- Douglas Natilis (unreported and unnumbered judgement, 2004); The State –v- Francis Angosiwen ( No.2) (2004) N2670). Whether or not Parliament did in fact make an error is moot given the presumption of law that Parliament makes no error. However, the sentiments expressed by the judges are valid and ought perhaps to be taken seriously by the law-makers because, to not do so would be tantamount to condoning a social ill and criminal behaviour that cuts right through to the very fabric of the family unit.

12. Criminalizing sexual intercourse within the degrees of family relationships prescribed by s 223 (2) of the Code is the society’s expression, through Parliament, of its disapproval of this type of behaviour. The crime of incest has increased markedly over the years and unless Parliament does something about increasing the penalty, this abhorrent behaviour will continue to flourish to the detriment of many families and the society as a whole. Until that happens, the State through the Public Prosecutor must, as suggested by Kariko J. in The State v Samuel Kawar (supra), exercise its independent discretion to lay charges with great care so that the appropriate charges are laid in circumstances where evidence establish rape (Section 347) or sexual penetration of a child under 16 years (s 229A) or persistent sexual abuse of a child (s 229D), so that appropriate sentences can be imposed on the guilty.

13. So while Parliament on its part may have seen fit and justified to reduce the penalty to a mere seven years, the courts are duty-bound to enforce and apply the law as they find it as best as they can. The courts have a duty to society to impose sentences within its powers that reflect the gravity and general abhorrence and distaste with which virtually all societies in Papua New Guinea view the crime of incest. While the courts are not judges of morality they have a moral and legal duty to...