State v Huliahwere [2003] PGNC 6; N2544 (23 October 2003)

N2544

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1038 of 2003

THE STATE

-V-

LUCAS HULIAHWERE

WEWAK: KANDAKASI, J.
2003: 22nd and 23rd October

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal responsibility – Evidence of compensation already paid – Where effect of ordering compensation or taking into account compensation paid adverse to deterrence, it should not be ordered or taken into account.

CRIMINAL LAW - Sentence – Grievous bodily harm to second wife - Victim suffering fracture arm injury - Guilty plea – No prior convictions – Prisoner has a habit of wife beating - Compensation paid – Expression of remorse – Victim stating compensation already paid and time spent in custody sufficient penalty - Probation report recommending community based order without a definite and clear arrangements for supervision - Sentence of 5 years imposed - Part suspended conditional on community based supervision being available and confirmed to Court’s satisfaction within specified time – Criminal Code ss. 19 and 319.

Cases cited:

The State v. Abel Airi (Unreported judgement delivered on 28/11/00) N2007.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Apa Kuman (unreported judgement delivered on 20/12/00) N2047.
The State v. Nickson Pari (N0.2) (unreported judgment delivered on 10/01/00) N2033.
The State v. Darius Taulo (unreported judgement delivered on 15/12/00) N2034.
The State v. Rueben Irowen (unreported judgement delivered on 24/05/02) N2239.
The State v Henry Idab (unreported judgement delivered 17/12/01) N2172.
The State v. Rex Rongo (unreported judgement delivered on 20/12/00) N2035.
The State v. Joseph Ulakua (unreported judgement delivered on 23/0502) N2240.

Counsel:

Mr. M. Ruari for the State
Ms. S. Maliaki for the Prisoner

23rd of October 2003

KANDAKASI J: Lucas Huliahwere, you pleaded guilty to one charge of causing grievous bodily harm to your second wife, Sabeth Huliahwere at Kwarabrie village in the Yangoru District of this Province on the 5th of December 2002 contrary to s.319 of the Criminal Code. On the basis of your guilty plea, and upon being satisfied as to the appropriateness of accepting your guilty plea, I had you convicted and administered your right to address the Court on sentence. You left it to your lawyer and she did that yesterday.

Based on your guilty plea, not having any prior convictions and having paid compensation for the injuries you caused to your wife together with your expression of remorse, you asked for a suspended sentence between 2 and 3 years. On the other hand, the State argues for a custodial sentence of 5 years, part of which, could be suspended if the Court is satisfied as to the basis for a suspension.

Which of these submissions I should accept is dependant on the particular facts of your case and the relevant law and practice together with the sentencing tariff in relation to the kind of offence you have pleaded guilty to. I therefore first deal with the facts. Then I will give consideration to the relevant law, its practice and the sentencing tariff, have that applied to the facts of your case and arrive at a sentence for you.

Relevant Facts

The relevant facts are short and simple. On the 5th of December 2002, between 7:00 and 8:00pm, your wife Sabeth, the victim was very sick and was laying down on the ground near a fire in your family’s newly built house. You were in the old dwelling house and called for Sabeth to come to you. She got up from where she was laying down. She then answered you and asked you to give her a few moments to get up and come over to you. She was just about to come to you when you suddenly appeared from her back hit her with a piece of wood on her left arm side, three times. She felt a lot pain and cried out in pain and you hit her again on her head causing her to bleed. She fell to ground with a lot of pain. Once she was on the ground, you proceeded to put one of your legs on the hand where you had hit three times, with your hands holding her around the wrist and gave it a very hard pull. She could feel her arm bones come apart and loose. By that time, she was in a lot more pain and she screamed. That is when you left her and surrendered yourself to the police at Yangoru police station.

Your victim and wife was taken to the Yangoru Health Center and from there she was referred to the Boram General. There, she was appropriately treated and later discharged. Medical report confirms that she suffered a fracture injury to her forearm. This required surgery for a fixation of the fracture. An intramedullary rod was inserted and the broken arm was placed in a cast at the elbow for six weeks.

The medical report also confirms that her medical history shows records of you previously beating her. The report states that, on the earlier occasion she sustained head injuries for which she was also hospitalized. Your victim and you confirm this.

The Offence and Sentencing Trend

The offence with which you have been charged is defined and its penalty prescribed by s. 319 of the Criminal Code. The maximum sentence prescribed is 7 years imprisonment.

There are a number of cases under this section where a variety of sentences have been imposed. I believe this has been the case because as I said in The State v. Abel Airi,[1] exercising the Court’s sentencing discretion is not a matter of mathematics. Instead, it requires an exercise of judicial discretion in such a way to do justice in the circumstances of a particular case. By reason of that, there might well be differences of sentences. I will discuss some of these cases to gather the kind of sentences that have been imposed.

I start with the case of The State v. Isaac Wapuri,[2] where a sentence of 18 months in hard labour with 5 months deducted on account of time spent in custody was given. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and pigs to the value of K800 in accordance with the victim and the offender’s custom.

In that case, the prisoner hit his sister in-law with a vehicle hand brake cable on one of her eyes resulting in a 90% residual disability. This was allegedly after the victim failed to get the prisoner to have sexual intercourse with him and she scattered all of his clothes all over the place. The prisoner thought that was in retaliation for his refusal and so he reacted in the way he did.

Another case, I note, is the one referred to me by your lawyer. That is the case of The State v. Philip Susuve Raepa.[3] There the victim was rendered brain damage out of a drunken brawl and after a skull operation to remove internal bleeding. The Court ordered K5,000 compensation and placed the prisoner on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the court and for the prisoner to abstain from alcoholic drinks for 12 months until further orders.

Later, in The State v. Apa Kuman,[4] a sentence of 3 years imprisonment was imposed. In that case, the prisoner after having raped the victim, cut her across her stomach to prevent her from calling out for help. That caused substantial damage to her left and right lobes, which bled profusely into the abdomen. Quick admission to the hospital prevented further bleeding and saved her from death due to loss of blood. The prisoner there was a young first time offender.

On my part, in one of the first cases I have come to deal with is The State v. Nickson Pari (N0.2).[5] There I imposed a sentence of 4 years and suspended part of it on terms, including good behaviour bond. That was a case in which the prisoner shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. He was also a first time young offender.

In the same circuit, I imposed a wholly suspended sentence of 3 years, on strict terms as an alternative form of punishment outside the prison system in The State v. Darius Taulo.[6] That was in the face of genuine remorse being expressed coupled with compensation already paid for by the prisoner himself, a preparedness to undergo his wife’s (the victim’s) traditional form of compensation and restoring the relationship and a willingness to truly change his ways under supervision. I was also persuaded to arrive at that sentence because the victim preferred compensation and that the innocent children of the marriage stood to suffer if the prisoner was sent to prison. Further, the pre-sentence report supported such a sentence. I also noted that the prisoner was a grown up man and he was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

In all of these cases, the prisoners pleaded guilty and that they were first time offenders. They all involved a single victim. Further, there was a good explanation for the commission of the offences although not all permitted by law. In the first case, it was a case of a sister-in-law provoking the prisoner after failing to secure a sexual intercourse from him. In the second and last cases, they were cases of drunken behaviour. As for the third case, the offence was committed to conceal another offence, on the basis of which, the case could be considered more serious and inexcusable. Finally, in the fourth case, it was a case of furtherance of the commission of another offence. This brings the case closer to the third case. The sentences were lenient in the first, second and last cases because of compensation payment or orders for payment of compensation.

These judgments were by judges of this Court. The decision of this Court or any other judge of this Court is not binding in itself. I am therefore not bound to follow the kind of sentences imposed in these case, some of which I find to be far too low and disproportionate to the seriousness of the offences committed. Nevertheless, the Court appears to have treated these cases as not very serious.

A more serious case is The State v. Rueben Irowen.[7] In that case the prisoner caused his two wives (victims) to strip down naked and caused serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. The prisoner was given the maximum prescribed sentence of 7 years each for the harm he had occasioned to the victims to be served cumulatively.

Another serious case is The State v Henry Idab.[8] In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally assaulting of one of the attacking group member’s mother. The group that was attacked included a Village Court magistrate. He was the victim of the attack. He suffered serious bush knife wound injuries to both of his hands resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work.

I imposed a sentence of 5 years part of which was suspended, on strict terms including community work. At the discretion of the village court magistrate, I left room in the judgement for the prisoner to render services free of charge to his victim, given the disabilities the prisoner had brought upon the victim.

Your Case

In your case, the victim was not a stranger to you. You were her husband. Your case is similar to the case of The State v. Rueben Irowen[9]and The State v. Darius Taulo[10] in that these are cases of wife beating. So the sentence may have to be similar or closure to those cases. Likewise, what the court said about wife beating would also apply here.

In The State v. Rex Rongo,[11] I observed that:

"... when God created man and woman, He made the woman a little lower than man by creating her out of the man’s ribs (Genesis 2: 21-23). Women are therefore, inherently not stronger than men. Because of that the Bible teaches that when a man and woman get married they become one flesh (Genesis 2: 24). Therefore a man needs to tender and care for his wife as his own flesh. The Bible also teaches that all human kind should love one another for that is the greatest commandment or law of God. ... Through our Constitution our country has adopted these very principles. Therefore, all citizens of our country and more so those who claim to be Christians should be the last to act contrary to those principles.

In The State v. Rueben Irowen,[12] the prisoner was also married to three wives like you. He almost killed two of them under very inhuman circumstances. He also had a pattern or habit of beating his wives. Then noting what I said in The State v. Rex Rongo,[13] I noted that he may not have been in love with any of them, evidenced by his pattern of beating them culminating in the case before me then. I arrived at that view on the premise that, a person has only one heart. If he or she marries more than one person, his heart is divided. Such a person is thus not fully committed, in terms of loving and caring for his or her partner because he is divided. This results in husbands in polygamous marriages such as the one you are in to find it easy to beat up wives.

Your Case

In your case, I note that you are about 45 years old now. You are married to three wives including your victim in this case. Your three wives have in total given you 15 children. This is indeed an appreciation of a much sadder position wherein you are the only member in your own family. You have therefore, produced a tribe out of one, thereby increasing your blood lines strength in the village. You could not have done that without the contribution of your three wives. Logically, this should have given a greater reason to love and cherish your wives like angels if not, queens. Instead, you have a habit of beating them and treating them like rubbish without value.

I note you are not just another person in your area. You have a trade store, own a plantation of 3, 1000 cocoa trees and another plantation of 2,500.00 vanilla trees. You are a member of the Seventh-Day Adventist Church. So I find that you are a man of substance and should be in a position to appreciate the need for harmonious living in your own family and your community.

I note that your Church does not encourage polygamous marriages for the very reasons I have already given. But somehow, you are married to three wives. You have not provided the Court with any explanation as to how you are married to three wives and still are a member of your church. That is not a critical factor against you, but the point that ought to be made is that all Christian Churches teach their members to adopt a Christ like character. That is a character that knows on the part of men no wife beating but love and respect for wives as their own body and as fellow members of God’s family.

The Christian churches also teach parents to be better role models for their children. This requires formal teachings to do good and be followers of Christ. But more importantly, the way in which we as parents conduct ourselves before our children. For as I said in The State v. Joseph Ulakua,[14] "there can not be much argument that violence produces violence, while peace produces peace." Therefore I said in that case and elsewhere in the context of a marriage and therefore a family setting that:

... the more we allow husbands who kill their wives and vise versa to go free or escape with a lenient sentence the men and women of tomorrow and children of today will grow into violent people. It therefore behooves the Courts to impose the maximum sentences ..."

Then as I said in The State v. Rueben Irowen,[15]

"When your kind of conduct goes unpunished or punished lightly, bad impressions and lessons are going to be passed onto your immediate children and other children in the community. That is a perfect recipe for turning out a very violent society."

Hence it is a very serious matter to introduce and or allow violent conducts and behaviours to reign in the family settings, because it is this unit that moulds children of today to be responsible citizens of tomorrow. Hence, if the father carries on with beating up the mother, the children are likely grow up thinking it is normal and eventually become violent themselves. If however love reigns supreme in the family, the children of today will be better citizens of tomorrow.

The evidence shows that you are a violent person. You have been beating up your wives over a period of time. This is not your first time. It is true you have no prior conviction, but that does not necessarily mean that you have been a good man all your live. Given your kind of behaviour, I am sure your children could have now come to accept that it is normal for a father to beat up the mother, habitually if he wishes. Then as you plead, they would have also come to accept that fathers can easily get away with it by paying their way out in terms of paying compensations and on account of that get a lesser sentence. All of this amounts to a very bad lesson immediately to your 15 children and others in the community. The law prohibits this kind of behaviour, which is in agreement with the teachings of the bible, which I trust your church teaches you. A strong deterrent sentence is therefore called for to give the message that it is wrong and must be stopped immediately.

Against these factors is your guilty plea, your claim of having paid compensation and your expression of remorse in Court. Your guilty plea carries on from your surrendering to police after the commission of the offence. This has reduced the time and money the State would have incurred in establishing your guilt had you denied it.

Your expression of remorse appears to go along with you having paid compensation of K1,500.00. Your victim has given a statutory declaration confirming that payment and indicating that, that is sufficient. Compensation is a factor in mitigation only and can not excuse one from criminal liability. In my view, compensation should not be a factor in mitigation where the facts of the case call for a deterrent sentence.

Now in your case, proceeding on from what I have already said about compensation, I note your offence affected your entire family, the children in particular because your attacks on your wives are habitual. No doubt, the children would have witnessed all of these. What are the children’s attitudes? Do they accept it? Have they been hurt? What lessons have they learnt from your conduct? There should be something at the least from the children touching on these aspects, but there is nothing from them. In the light of that, I do not consider your expression of remorse in Court to the exclusion of your children, your community members and the members of your local church meaningful. I therefore do not attach much weight to your expression of remorse and the payment of compensation.

Although not specifically raised, I infer by reason of your drawing to the Court’s attention your business and personal backgrounds, that a longer prison term will affect your business. If that is what you have in mind, then you be informed that that is a direct consequence of your own actions. You as a grown up man should have considered all of these before committing the offence. Hence this can not be a factor in your favour.

In the particular circumstances of this case, I am of the view that this is a serious case of grievous bodily harm but not necessarily the worst kind. This does not warrant the imposition of the maximum prescribed sentence of 7 years imprisonment. But a sentence closer to that, which reflects the factors both for and against you, is appropriate. Such a sentence should also have an element of personal and general deterrence in view of the fact that the past sentences appear not to be deterring men like you from committing this kind of offences. I consider an immediate custodial sentence of 5 years in hard labour is appropriate.

Of the 5 years sentence, I order that 10 months 3 weeks to date you have spent in custody awaiting your trial be deducted. This will leave you with a period of 4 years 1 month 1 week. I order that you serve that term in hard labour at the Boram CIS.
____________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor

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^[1] (Unreported judgement delivered on 28/11/00) N2007.
^[2] [1994] PNGLR 271.
^[3] [1994] PNGLR 459.
^[4] (unreported judgement delivered on 20/12/00) N2047.
^[5] (unreported judgment delivered on 10/01/00) N2033.
^[6] (unreported judgement delivered on 15/12/00) N2034.
^[7] (unreported judgement delivered on 24/05/02) N2239.
^[8] (unreported judgement delivered 17/12/01) N2172.
^[9] Supra note 7.
^[10] Supra note 6.
^[11] (unreported judgement delivered on 20/12/00) N2035.
^[12] Supra note 7.
^[13] Supra note 11.
^[14] (unreported judgement delivered on 23/0502) N2240

^[15] Supra note 7.