Kipandu v Paul [2009] PGDC 76; DC1008 (12 January 2009)

DC1008

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CRIMINAL JURISDICTION

Case Number GFC 26 of 2008

BETWEEN:

CONRAD KIPANDU
(Informant)

AND:

BETTY PAUL
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 18 July- 19 December
2009: 12 January

CRIMINAL: Offence of unlawful wounding- Sentence- Wound on head sutured with five stitches- Guilty plea- Provocation in non legal sense submitted for victim committing alleged adultery with offender’s husband - First time offender- Expression of remorse- Cooperated with police-Court ordered pre sentence report and means assessment report both reports recommended suspended term of sentence as offender is suitable candidate for probation with condition for compensation- 10 months suspended sentence imposed on condition of recognition for 2 years probation with terms- Criminal Code Act s. 322 & s. 19.

CASES CITED:

The State v Owen Sangu (unreported National Court judgement) (22 February 2008) CR No 22 of 2006.
The State v Arnold Ongkau (unreported National Court judgement) (18 October 2007) Cr 715 of 1999.

Counsel:

Sergeant N Pitu of Police Prosecution for State
Mrs. A Meten for Defendant

JUDGEMENT ON SENTENCE

12 January 2009

SELEFKARIU, PM: On 11 August 2008 when you were formerly arraigned and the police facts were read to court you said you committed the wrong after you warned the victim several times that she should not go out with your husband and when you witnessed with your own eyes you assaulted the victim by wounding her using a piece of timber and you could have used the knife you carried had it not been for the victim’s action to arm herself with stones thus momentarily stopping your advance and with the help of others present prevented you from further violence and perhaps injuries.

In view of that statement the court formed the view that you could have a possible defence of provocation if you caught the victim and your husband committing adultery on 12 April 2008 at Admin. Compound and you reacted the way you did then.

The case went to trial on 21 October 2008 and prosecution called the evidence of Clara Oahui, the victim.

After giving of the victim’s evidence the question was put to you if it was true that on 12 April 2008 you did not catch the victim and your husband committing adultery then and what is alleged was based on mere suspicion.

On that question you answered in the affirmative and that made the court to rule that you have no clear defence in law and the trial ought to be put to a halt which indeed was stopped.

As a result the court informed you that it finds you guilty as charged and that it will proceed to sentence.

You finally secured the service of the Office of the Public Solicitor who has put to court your submissions on sentence.

According to the police facts sometime about midday of 12 April 2008 you came across the victim at the Admin. Compound and assaulted her as you accused her for committing adultery with your husband.

At that time you were armed with a piece of timber and a knife which you intended to use to harm the victim. In fact you used the timber and hit the victim on her head and tried to use the knife to further wound the victim but you momentarily stopped when the victim reached out for some stones in order to protect her which allowed some bystanders to come to the victim’s aid and prevented further violence and possible injuries.

The victim was taken to the hospital and treated for a laceration to her left temporal region measuring 4cm in length and 3cm deep which was bleeding, very tender and swollen. The wound was sutured with five stitches and pressure dressing applied with appropriate antibiotics and other treatment brought the wound under control. A review on 15 April 2008 shows the wound healed well.

Both sides have addressed the court on sentence for which I have taken time to consider them.

In the defence submissions prepared by your counsel you submitted you are about 45 years old and married but have no children. You however take care of seven children from the previous marriage of your husband, Paul Yamugara

You are from Yonki village, Asaro District of the Eastern Highlands Province. Your highest education is attending primary school education at Yauna Primary School and you are currently unemployed.

Your counsel submitted in your mitigation that:

• You acted alone in committing the crime.
  
• You are a first offender without prior record of conviction.
  
• You admitted to police of your wrong and cooperated by assisting police in their investigations.
  
• You said you are remorseful of what you did and you are willing to compensate the victim.
  
• You said the victim provoked you by having an affair with your husband.
  

But in your own evidence you did not show that you caught the victim with your husband having sexual intercourse or in a position of ‘flagrante delicto’ at any one time and so your evidence are based on suspicion.

I do acknowledge your defence is in a non legal sense where you said you confronted the victim twice already warning her not to take food to your husband or see him.

Your counsel also submitted that the aggravating factors are:

• You used a timber to wound the victim which is a dangerous weapon.
  
• You acted alone as oppose to a mob situation.
  
• Your action was not an accident as it was premeditated.
  
• The assault was vicious in nature.
  

The main issue therefore is to find your sentence that is appropriated to the circumstance of your case.

In relation to the case authority you submitted the case of The State v Owen Sangu (unreported National Court judgement) (22 February 2008) CR No 22 of 2006 and the case of The State v Arnold Ongkau (unreported National Court judgement) (18 October 2007) Cr 715 of 1999.

I thank you for your efforts in making these cases available but I think the facts of your case resemble or are similar to one of the case which I gave sentence most recently.

The case is the case of Josephine Gabriel who attacked her victim with a knife and a broken piece of glass which caused multiple wounds which were sutured. Her reason for doing so was that she suspected the victim for committing adultery with her husband. She pleaded guilty, was remorseful and said she was willing to compensate the victim.

She was given a one year suspended sentence with terms one of which was for her to compensate the victim.

In your case there are similarities except that the weapon you used was a timber and not a knife, the wound was a single wound and not multiple and like Josephine you both acted alone but premeditated. Josephine apparently spent considerable time in custody which you did not do but Josephine had to be detained for breach of her bail.

Finally your counsel submitted that I impose a term of 18 months imprisonment and suspend the same and place you under good behaviour for 12 months and one of its conditions is to order compensation against you.

In your case you unceremoniously used a piece of timber and could have used the knife which you intended doing but you were stopped in your track as mentioned earlier.

On that day the victim wasn’t armed and you took her by surprise except for others who were with her raised a warning which was too late as you had administered the blow which is quite vicious.

Your behaviour is uncalled for and indeed very aggravating under the circumstance which is evident in the size of the wound.

In relation to compensation it is viewed that pre sentence compensation shows genuine remorse and carries a higher mitigatory weight as compared with court ordered compensation.

You submitted that you acted under provocation but in a non legal sense as you did not catch your husband and the victim in the act of adultery, the ‘flagrante delicto’ position.

In that regard I can give some consideration but with very little weight as there is no evidence and so it remains a mere allegation with out proof.

Cases of women committing crimes of passion in polygamous marriages are quite rife in our society. It becomes unfair on the wife if she is singled out to face the brunt of the law whilst the husband who is in most cases the principal cause is left alone.

But that does not mean that your behaviour can be excused because what you did is unacceptable and deserved punishment.

The offence is very prevalent and except for the merits of its case it deserves a deterrent punishment.

I note your willingness to pay compensation and to hold you in custody if I do sentence you to terms of imprisonment would not enable you to seek help from your relatives as compensation is considered mainly a group form of punishment or responsibility so whoever assisted you in paying compensation will continue to remind you of your responsibility to promote good behaviour: Acting Public Prosecutor v Don Hale (unreported Supreme Court judgement) (27/07/98) SC 564.

But I think other factors such as guilty plea, being remorseful and cooperating with police are sufficient to mitigate your sentence and to qualify you to a suspended sentence with terms. I must add that I view your case not the worst of its kind.
In suspending your sentence I am empowered under section 19 of Criminal Code Act to do so.

Taking to account all of the above both the aggravating and the mitigating factors, to give you a custodial sentence would be most unfair as it would not place you in the position to compensate the victim as recommended by the Probation Services in the pre sentence report and the means assessment report.

At this juncture I must show my appreciation to the Probation Services who worked tirelessly in making available both the pre sentence and the means assessment reports to assist me to find a sentence fitting to the circumstances of your case for which I say thank you most sincerely.

On these bases I convict you and sentence you to one year imprisonment for which the whole of its execution is suspended on condition that you enter into recognition for two years probation on the following conditions:

1. You undertake to keep peace at all times and be of good behaviour especially towards the victim for the period of two years as from today;
   
2. You are ordered to compensate the victim in the sum of K200.00 within twenty one days from today;
   
3. You shall not leave Madang Province except by permission of court until you comply with condition (2) of this order.
   
4. You shall refund your bail in full which should assist you pay compensation as ordered.
   
5. Should you breach any of the above conditions, you shall be committed to serve your suspended term of imprisonment of one year with hard labour.
   

Police Prosecution for State
Lawyers for Defendant: Public Solicitor