Police v Tetenge [2008] PGDC 128; DC896 (11 December 2008)

DC896

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCR 1100 of 2008

BETWEEN

POLICE
Informant

AND

KAVIP TETENGE
Defendant

Kokopo: J Kaumi
2008:10th & 11th December

CRIMINAL - Unlawful Assault-Plea-Sentence-

Cases Cited:

Paulus Mandatitip vs. State [1978] PNGLR 128
State vs. Keputang Nagong [1980] N225

References:

Summary Offences Act 1977 [Ch.No.264]

Counsel:

Snr Constable Mandrei, for the Informant
Nil, for the Defendant

SENTENCE

1. KAUMI: M The prisoner was charged with one count of Unlawful Assault pursuant to S. 6.3 of the Summary offences Act.

2. The Police alleged that on 07th October 2008 at Bitapabeke Village, Kokopo at about 9:00 am the defendant was with his wife (the victim) Selina Tibam and their four children.

3. After a short argument over money and rice the defendant punched his wife several times all over her body and his wife had a struggle with him, trying to free herself from him because at that time she was carrying their baby and was also six months pregnant.

4. Furthermore that the defendant walked away after assaulting her and later in the day at around 12:00 midday she started feeling backaches and later on the same day at night Selina had a miscarriage and delivered a dead fetus.

5. In relation to your personal particulars the Court notes the following;-

1. You are married with four children:

2. Are a villager with no formal education ?

3. You have no prior convictions.

6. On your behalf the Court notes that you pleaded guilty on arraignment and further expressed remorse, apologized to your wife and the Court.

7. The genuineness of your expression of remorse is borne out by your plea of guilt.

8. The maximum penalty for the offence you committed is a fine up to K500.00 and a term of imprisonment not exceeding two years

9. Mr. Mandrei in his submission on sentence urged this Court to take the following into consideration

a. Your plea of guilty and the peculiar circumstances of this matter;

b. The fact that the assault was on the victim who was six months pregnant;

c. That at the time of the assault not only was Selina your wife pregnant but also carrying another child of yours, a baby and the fact that you didn’t respect your wife in her advance stage of pregnancy nor the fact that she was carrying your baby who could have been caught in the exchange of punches.

d. He further submitted for a deterrent sentence;

e. Lastly, that I use my sentencing discretion under S.6.4 of the Summary Offences Act.

10. In the case of Paulus Mandatitip v The State [1] the Supreme Court held that where an offence is prevalent the Courts must be severe in their punishment.

11. In the State v Keputang Nagong [2] the Court said while there is a need to maintain uniformity of the sentence for the purpose of deliverance, the court should hesitate to depart from the uniformity where the particular facts of an individual case demand it.

12. In this matter, the court takes the view that this case is quite serious in that a few hours after the assault the victim started feeling backaches or the onslaught of labor culminating in the miscarriage and delivery of a dead fetus, still only hours after the assault after an argument of money and rice.

13. I have done a survey of the range of sentences imposed by this court so far in 2008 and note that the penalties have ranged from a fine of K50.00 to K300.00 on one hand and a Good Behavior Bond for twelve months on the other.

14. Whilst these penalties are a guideline as to the sentencing pattern in Kokopo I am not bound by them where justice and fairness dictates that in accordance with the peculiar circumstances of a case I should not follow suite.

15. The Court notes that this was a domestic situation not uncommon in PNG but nonetheless serious and prevalent.

16. In consideration of all mitigation and aggravating features peculiar to this case this court is of the opinion that:-

a. The defendant has already suffered a loss of a child as a result of his actions and this is a fact that he will have to live with for the rest of his life, it is indeed a lifelong indictment on him;

b. There is certainly a need to deter husbands from violence against their wives in PNG society which is unfortunately the norm rather than the exception;

c. The Court takes the view that to impose a fine on you would bring undue hardship to you in that you are an unemployed villager with four children whose livelihood and wellbeing you are responsible for.

17. The sentence of the Court is as follows:

a. The prisoner is sentenced to 6 months IHL

b. The whole term is suspended and the prisoner placed on a six months Good Behavior Bond

c. You shall pay within two weeks of today to your wife 20 fathoms tabu through the Clerk of Court as compensation pursuant to S.6.4 SOA.

_____________________

Police Prosecution for the Informant
Defendant for himself

1. [1978] PNGLR 128
2. [1980] N225