Police v Gabby [2009] PGDC 63; DC928 (11 August 2009)

DC928

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

DCR 689 of 2009

BETWEEN

POLICE
Informant

AND

TERRY GABBY
Defendant

Madang: J Kaumi
2009: 07th & 28th July,
11th August

CRIMINAL - Unlawful Assault-Plea-Sentence- Summary Offences Act [Ch.No.264]

Cases Cited:
Nil

References:
Nil

Counsel:
Snr Constable Bel, for the Informant
Nil, for the Defendant

11th August 2009

SENTENCE

1. KAUMI, M. The prisoner pleaded guilty to one count of unlawfully assaulting, charging that on the 2nd of July 2009 at Holy Spirit Primary School in Madang Town he unlawfully assaulted Ms Erita Yawi contrary to Section 6 subsection 3 of the Summary Offences Act.

2. The facts of the case show that on Friday 2nd July 2009 between 6:00pm and 6:30pm, at Holy Spirit Primary School, Madang, you were there and the complainant , namely, Erita Yawi, your wife asked you to repay K130.00 you had borrowed from her the day before.

3. You then told the complainant that you had finished your money on beer because of frustration and then you commenced to punch her face resulting in her suffering a swollen face.

4. Further that your assault on your wife, Erita Yawi had been continuous from Tuesday 30th June 2009, when you assaulted her nephew and her and threatened her with a knife and apiece of timber.

5. On your personal background, you are 37 years old and come from Passam village and are the second born in a family of five adult children.

6. You married Erita Yawi in 1994 and in your fifteen (15) years of marriage have two (2) sons aged 15 and 11 years old.

7. The Court has had the benefit of receiving and reading the Community Corrections &Rehabilitation Services Pre-Sentence report and I must say it has shed a lot of light on a number of issues pertinent to this case.

8. Firstly, that you are a highly educated person with two university degrees of Bachelor of Arts in Education and Public Policy in Management.

9. Secondly, your abuse of your wife, the victim in this matter, Erita Yawi has spanned the whole fifteen years of your marriage and that she has never once complained for various reasons until this year.

10. Thirdly, that your wife has never complained in the past because of assaults and threats against her by yourself cowering her into submission and silence.

11. Fourthly, that she wants this Court to understand that the situation of violence being visited upon her by you has reached a critical stage of life or death.

12. Fifthly, that she wants the Court to restrain you from physically abusing her and seeks separation from you.

13. Sixthly, your son, Sean Gabby has stated that though you are a good person, when you get drunk you have a tendency to assault his mother with weapons, but wants the Court to exercise leniency and issue such orders as to stop you from being violent to his mother.

14. Seventh and most importantly, is the reason for the assault on your wife on Friday 2/07/09 was her nephew.

15. It is quite clear from the Pre- Sentence Report that you have an issue with alcohol binge drinking and ‘anger’ management once under the influence of alcohol.

16. This Court notes that there is no medical report provided to it outlining and confirming the extent of the injury the complainant suffered as a result of your actions.

17. Terry you can be jailed for two years for the offence you committed against your wife. You may get cross with your wife but for you to attack her for such flimsy reasons that were advanced in court are totally unacceptable to this court.

18. Despite the seriousness of this offence, the whole tone of the PSR is for a non custodial sentence.

19. Whilst this court appreciates this attitude, it deplores your actions against your wife on the material date simply because it cannot comprehend the connection between the actions of her nephew and herself

20. It is made all the more serious because of the fact that you were no ordinary ‘run of the mill’ offender; you are a holder of two university degrees.

21. Indeed had you been a grassroots or villager you could have been treated in a totally different light because of the circumstances of such a person.

22. In your favour this court takes into account your plea of guilty and lack of prior convictions begin a first offender.

23. Against you are the circumstances surrounding your attack on your wife, the prevalence of this particular offence in contemporary PNG society today which is regrettably the norm rather than the exception.

24. Indeed in this country today, there is a public outcry against this violence against women, leading to amendment to law to accommodate this issue and more gender equality.

25. You as a highly educated elite have absolutely no excuse in law or otherwise for your actions.

26. There is a need for deterrent sentence against this type of offence.

27. I have to weigh up the mitigating factors in your favour against the aggravating features in this matter and pass a sentence which must be just in all the circumstances.

28. This court accepts that you were provoked strictly in the non legal sense.

29. You are now before this court today for sentence and though by the records you are a first time offender it is also clear that this was not the first violent assault you committed on your long suffering wife, certainly not by any stretch of the imagination.

30. Bearing in mind the seriousness of the peculiar circumstances of this matter you are sentenced in the following manner:-

1. That you are sentenced to a term of imprisonment of one year in hard labour.

As your immediate incarceration may result in undue hardship to your whole family this court suspends the whole of the sentence on the following conditions:-

(a) You shall keep the peace and be of good behaviour bond,

(b) You shall not consume alcohol during the duration of your good behaviour bond,

(c) You are restrained from assaulting or intimidating your wife in any manner or form during the duration of your good behaviour bond.

(d) You will attend to the office of the Council of Women here in Madang and see Mrs Mary Kamang and Mrs Maggie Pidik for counselling on domestic violence and ‘anger’ management on Friday 14th August 2009 at 9:30 am.

___________________

J. Kaumi
Police Prosecutions for the Informant
Nil representation for the Defendant