State v Naiwa [2004] PGNC 58; N2710 (22 June 2004)

N2710

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 461 of 2004

THE STATE

-V-

VINCENT NAIWA

WEWAK: KANDAKASI, J.
2004: 10th and 22nd June

CRIMINAL LAW - Compensation – No independent verification of means to pay – Relatives prepared to assist – No proposal by accused to repay contribution from relatives – Inappropriate to order compensation.

CRIMINAL LAW – Sentence - Grievous bodily harm to sister-in-law – Use of bush knife – No good reason for attack – Left hand of victim rendered useless – Guilty plea – First time offender – Prevalence of offence - No compensation paid and having no means to pay – Pre-sentence report not balanced - Custodial sentence appropriate – 5 years sentence imposed – Criminal Code s. 319.

Cases cited:
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459.
The State v. Apa Kuman (20/12/00) N2047.
The State v. Nickson Pari (N0.2) (10/01/00) N2033.
The State v. Darius Taulo (15/12/00) N2034.
The State v. Rueben Irowen (24/05/02) N2239.
The State v Henry Idab (17/12/01) N2172.
The State v. Eddie John Naopa (24/04/03) N2411.
The State v. Marety Ame Gaidi (26/0802) N2279.
The State v. Louise Paraka (2002) N2317.

Counsel:
J. Wala for the State
L. Siminji for the Prisoner

22nd June 2004

KANDAKASI J: You pleaded guilty to one charge of causing grievous bodily harm to another person, Jelpina Winduo at Walemba, Kubalia area, here in the East Sepik Province on 22nd December 2003 contrary to s.319 of the Criminal Code.

Following your guilty plea, the State admitted into evidence, with your consent, the District Court depositions. I read the witness statements and your record of interview, which were in the depositions and notice that, you raised the possible defence of acting in self-defence. I raised that with your counsel and your counsel informed the Court that, you were not raising that defence. I was thus satisfied that, there was sufficient evidence supporting the charge and your eventual guilty plea. I therefore, accepted your guilty plea and had you convicted on the charge of grievous bodily harm as presented.

Before your address on your sentence, your lawyer applied for a pre-sentence report. I granted that application and directed that the report should be furnished by 17th June 2004. The Probation Services here in Wewak furnished a report on the date required. I perused that report and noted that, it had no input from the victim and her relatives. Similarly, I noted that, there was no input from the police and any impartial leader in the community indicating their position in relation to the kind of sentence they would want to see you receive. This is important because the Court needs to know, whether they would welcome a non-custodial sentence and if so, what part they would play in a fulfilment of any terms or conditions, the Court might impose as an alternative to of the prison system.

I adjourned your case to the next day, 18th June to see if the situation could improve. The Court then adjourned to yesterday for the administration of your allocatus and receipt of the parties’ submissions and see if the position in relation to your pre-sentence report could improve. The situation improved only a little in terms of an affidavit from a leader here in Wewak away from the village where the incident took place and where you are ordinary resident. That has not, in my view, assisted in overcoming the defects in your pre-sentence report.

Relevant Facts

Turning now to the relevant facts, I note that in the night of 21st of December 2003, you went and slept in a smaller house. Later around 1:00am you called for your son, Joshua to come out of the main house and sleep with you upon hearing him cry. You called out for quite a while. It seems no one opened the door to your family house. You therefore, broke the door and got your son out.

The next morning, on waking up and coming out, your wife found out that the door was damaged. She therefore asked as to who damaged it. Your sister-in-law, the victim of your offence who heard you in the night informed your wife that it was you. Thereupon, your wife came, woke you up from your sleep, and told you to go and fix the door. You responded by swearing at her saying "You hole, you vagina". Then you got out from where you slept, you carried your son, took a bush knife from within the house, came out, put your son on the ground and then walked over to your wife and swung the bush knife at her. She avoided it by moving away from it. She stayed some distance away from you and told you that, you damaged the door according to the victim of your offence and invited you to go and examine the door. You did that.

After inspecting the door, you walked over to your sister-in-law and swore at her saying "You vagina, hole you." Then you asked her, "What did you say about me?" After that, you went over to her, grabbed her neck and started to squeezed it and pushed her down to the ground. She managed to stand up and as she did, you started to attack her with your bush knife. By this time, she realized that you were attacking her with the bush knife so she ran to where her sister, your wife was and got a knife off from her. Then she saw you swinging your knife at her again and so she used the knife she took from your wife and blocked your bush knife from reaching her body.

You swung your bush knife at her again on the left side of her head. On seeing that, she lifted her left hand to avoid you reaching her head. As a result, you cut her left hand amputating the left pointer finger and reached her tall man and ring fingers from the palm. Then you grabbed her, pushed her against a stool, where upon she stumbled and fell to the ground. She got up and found that she was seriously injured and she ran away and returned a little later. At that time, she and her sister, your wife searched for the cut off finger, found it, and later went to the hospital.

Meanwhile, you ran away to Wewak town and surrendered to police the next day, whereupon your arrest came. In your record of interview, you claim that, the victim attacked you first and you attacked her without any intention of causing her such injuries. You have reconsidered that and have now decided to abandon that. Therefore, the facts remain as noted above, on the basis of which the Court accepted your guilty plea.

Allocutus and Submissions

In your address on sentence, you asked the Court to note and consider your guilty plea and being a first time offender. You also said sorry for what you have done. You then asked for probation so you could return to the village and settle the matter. In the pre-sentence report, you claim that the injury to the victim was an accident, but I find that the facts discredit you on that. Besides, the report was prepared entirely on your statement. There is no input from the victim or any of her relatives. There are also no character references or any input from community leaders in a balanced manner.

Your lawyer added by informing the Court that, you are 31 years old and are married with one child who is aged four years old as opposed to the pre-sentence report say two children age 1 year and 4 months respectively. Your wife and child are in the village. You have a brother and 4 sisters. You are the 6th born in your family and you come from Walemba village in the Kubalia area of this Province. Further, you are educated up to grade ten and at one stage; you were employed as a helping hand in Port Moresby. By way of religion, you belong to the Catholic Faith.

Soon after the commission of the offence, you fled from the village in fear of retaliation from the victim’s relatives. The next day, you surrendered to the Wewak police. You freely admitted to the commission of the offence upon which your arrest came and kept in the cells until bail the following day. You were out on bail since, until this Court revoked your bail following your conviction. You have thus been in custody for 13 days only.

From the pre-sentence report, I note that your elder brother works with the Wewak General Hospital as its driver. He is prepared to help pay compensation of up to K2, 000.00 over one and half a year. You say the victim and her relatives are prepared to accept compensation of up to K2, 000.00. You have 500 vanilla plants, which have started flowering. Additionally, you have two coffee gardens and two cocoa gardens.

Your lawyer urged the Court to take into account, your guilty plea, being a first time offender and your personal and family backgrounds as set out above and place you on probation with orders for compensation. On the other hand, the State submits that you have not paid any compensation to demonstrate your remorse. It also submits that, in the absence of any evidence of you having the means to meet any compensation order, compensation is inappropriate and asks for a sentence up to the maximum prescribed sentence of 7 years.

The Offence and Sentencing Trend

Section 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a penalty not exceeding 7 years. A number of judgments have already dealt with offences under this section before imposing a variety of sentences.

The earlier cases such as The State v. Isaac Wapuri [1994] PNGLR 271 and The State v. Philip Susuve Raepa [1994] PNGLR 459 dated back some ten years. These cases imposed sentences from a few months to 1 or 2 years. Since then the offence has not declined but has increased over the years. Sentences have therefore, started to increase to reflect the increase and prevalence of the offence. In The State v. Apa Kuman (20/12/00) N2047, a sentence of 3 years imprisonment was imposed. There, 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 was a young first time offender.

Noting the prevalence of the offence and forming the view that past sentences appear not to be deterring other persons from committing this offence, in The State v. Nickson Pari (No.2) (10/01/00) N2033, I imposed a term of 4 years and suspended part of it on terms, inclusive of 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.

Later in The State v. Darius Taulo (15/12/00) N2034, I imposed a wholly suspended 3 years sentence on strict terms as an alternative form of punishment outside the prison system. 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. The persuasion there was the fact that the victim preferred compensation. Further, a pre-sentence report supported such a sentence. I also noted that the prisoner was an adult, was not a danger to the society and that the society through a pre-sentence report was prepared to help him to rehabilitate.

A more serious case of grievous bodily harm was the case of The State v. Rueben Irowen (24/05/02) N2239. In that case, the prisoner forced his two wives (victims) to strip down naked and effected 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. I imposed the maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.

Another serious case is The State v Henry Idab (17/12/01) N2172. In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member’s mother. In the process, a village court magistrate sustained serious bush knife 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, and suspended part of it on strict terms including community work. I also allowed at the discretion of the village court magistrate, room for the prisoner to render services free of charge to his victim.

Finally, in The State v. Eddie John Naopa (24/04/03) N2411, I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot.

The last three cases were all out of here in Wewak or in this Province. I have dealt with several others in this province already. Even in this circuit the offence of causing grievous bodily harm for no good reasons or for silly reasons or clearly avoidable situations is on the increase and is very prevalent. There is a ready use of dangerous weapons such as bush knifes and such other dangerous weapons to resolve problems even in close family relations as in your case.

Sentence in Your Case

In your case, the victim was not a stranger to you. She was your sister-in-law. In most of the societies in Papua New Guinea, people are generally slow to attack their in-laws out of respect for them and respect for the institutions of marriage that units two different groups of people. Given that, you stepped out of line.

The reason for you attacking the victim is absolutely, no good reason at all by any measure. It was very ridiculous. You broke the door to your own house door after choosing to sleep in a different house from your family. You do not say why it was necessary to break down your own house’s door. Likewise, you do not say what did the victim or your wife do that caused you to damage the door. All that the victim did was let your wife know upon her noticing a damaged door, that you were responsible for the damage. She said nothing that could have provoked you or anything like that.

You became so abusive for nothing, starting with the use of insulting words and following that through with physical attacks on your wife, who fortunately avoided any serious injury and your sister-in-law, who sustained serious injuries. You did not attack her just once with a dangerous weapon. You attacked her more than once. According to the medical report, one side of her hand is useless because she cannot grip anything with that hand. Therefore, you handicapped her for life. Her prospect of marriage may be affected because of her physical disability.

This shows you are such a violent person, showing no hesitation in using insulting words and readily using dangerous weapons. You are educated up to grade 10 and are not far from the township of Wewak. Therefore, you have had sufficient exposure to the need to face and deal with problems in a more civilized way. Notwithstanding that, you acted like an uncivilized person. Having come to Wewak and dealing with a lot of your kind of conduct and the prevalence of this offence, I note that this offence is on the increase and is very prevalent. Therefore, the sentences have to be increased with a view to deterring others from committing similar offences.

In these circumstances, I consider a sentence up to the maximum prescribed sentence of 7 years is called for. However, because of your guilty plea and you having no prior conviction, I will have that reduced to 5 years. I have considered compensation and suspension of either the whole or part of the sentence and have decided against them. The reason for this is simple. Firstly, the pre-sentence report does not provide sufficient and verified information in the terms I have discussed in a large number of cases as in The State v. Marety Ame Gaidi (26/0802) N2279 for that to happen. Whilst I appreciate that the probation service has had a very short time, the problem lies with you and your counsel not making up your mind quickly and organizing the report in sufficient time in the manner, I suggested in The State v. Louise Paraka (24/01/02) N2317. Secondly, you are an adult where suspension is not necessarily a readily available option except in exceptional circumstances. You have not demonstrated an exceptional case for suspension of either the whole or part of it. Thirdly, ordering compensation and thereby reducing the sentence will give the impression that, such a violent person like you can escape a severe and appropriate penalty by paying his way out.
___________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor