State v Rusa [2008] PGNC 151; N3510 (13 October 2008)

N3510

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 520 OF 2007

THE STATE

V

LUCY RUSA

Mendi: Makail, AJ
2008: 8 October
: 13 October

CRIMINAL LAW - sentence - grievous bodily harm - adult female - domestic setting - prisoner and victim are co wives - aggravating factors - use of weapon - complete severance of two toes - serious and permanent injuries - prevalence of offence - mitigating factors - first offender - presence of de facto provocation - victim instigated fight - maximum penalty is 7 years - Criminal Code - section 319 - call for stiffer penalty - penalty imposed must act as personal and public deterrence - 2 years imprisonment imposed - suspension of sentence inappropriate.

Cases Cited:

The State v. Thomas Waim [1998] PNGLR 360
The State -v- Peter Erne (1999) N1939
The State -v- Laken Alois Yamain: CR No 249 of 2000 (Unnumbered & Unreported Judgment of 4 September 2000)
The State -v- Ale Anesa: CR No 472 of 2001 (Unnumbered & Unreported Judgment of 13 July 2000)
The State -v- Nickson Pari (No 2)(2001) N2033
The State -v- Henry Idab (2001) N2172
The State -v- Darius Taulo (2001) N2034
The State -v- Albina Sinowi (2001) N2175
The State -v- Moma Robert: CR No 440 of 2002 (Unnumbered & Unreported Judgment of 7 May 2002)
The State -v- Tim Poko Wasa: CR No 628 of 2001 (Unnumbered & Unreported Judgment of 14 May 2002)
The State -v- Kenny Rueben Irowen (2002) N2239
The State -v- Eddie John Naopa (2003) N2411
The State -v- Malia Pes: CR No 749 of 2001 (Unnumbered & Unreported Judgment of 22 April 2003)
The State -v- Vincent Naiwo (2004) N2710
The State -v- Malia Pes: CR No 749 of 2001 (Unnumbered & Unreported Judgment of 22 April 2003)
The State -v- Roslyn Charlie: CR No 1028 of 2004 (Unnumbered & Unreported Judgment of 27 February 2008)
The State -v- Pal Binowi: CR No 539 of 2008 (Unnumbered & Unreported Judgment of 25 August 2008)
The State -v- Vero Gul: CR No 1047 of 2005 (Unnumbered & Unreported Judgment of 07 April 2008)

Counsel:

Mr J Kesan, for the State
Mr P Kumo, for the Prisoner

SENTENCE

13 October, 2008

1. MAKAIL AJ: On 8 October 2008, the prisoner pleaded guilty to a charge of unlawfully causing grievous bodily harm to another person by the name of Marty Kewa contrary to section 319 of the Criminal Code. After having satisfied myself from the court deposition presented by the State that the charge has been made out, I convicted the prisoner accordingly.

BRIEF FACTS

2. The facts put to the prisoner on arraignment were that the prisoner and the victim are co wives. On the morning of 12 July 2006 between 7 o’clock and 8’oclock, the prisoner and the victim were at their husband’s village called Kerebali in Pangia of the Southern Highlands Province. The victim was digging kaukau in her garden with two other women. The prisoner walked past them to go to the house when she met the victim and the other two women and an argument developed between the prisoner and the victim. It eventually ended up in a fight between the prisoner and the victim.

3. During the fight, the prisoner and the victim wrestled each other and the prisoner pulled out a knife and chopped off two of the victim’s toes on her left leg. The victim fell unconscious and was taken to the hospital for treatment. The injuries were serious and life threatening.

ALLOCUTUS

4. On her allocutus, the prisoner said sorry to God and to the Court for committing this offence. She also said sorry to the victim for causing serious bodily injuries to her.

5. Secondly, she said that she was in school at Pangia High School when her husband came and lured her away from school by promising her that he will pay for her further education if she married him. Upon this representation, she left school and followed him to his village where she lived with him and bore him a son. Then, her husband started seeing the victim and eventually brought the victim to their house to be his second wife. The prisoner was not happy about the idea and left the matrimonial home.

6. After sometimes, the husband sent word for her to return with his son and promised her that he will divorce the victim. Upon this representation, she returned to his village with her son. But as it turned out, the victim returned and that led to the fight where she wounded the victim. After the prisoner wounded the victim, she gave K400.00 to the victim to pay for her medical bills. She also wanted to give compensation but the victim refused and told her that she would bring the matter to Court. This is how she has ended up before this Court.

7. Further, she said that she is a first offender and pleads for leniency. Finally, she is willing to give compensation to the victim.

THE LAW

8. Section 319 of the Criminal Code makes it an offence for a person to unlawfully cause grievous bodily harm to another person and the penalty for committing this crime is imprisonment for a term not exceeding 7 years.

REASONS FOR DECISION

9. To begin the exercise to determine an appropriate sentence for the prisoner, I hate to repeat myself here as I have made the same comments in the past in similar cases as this one, but I must repeat it here for the prisoner’s sake and for the record that offences of unlawful wounding, assault and grievous bodily harm have been a common occurrence and which this Court has been inundated with from time to time.

10. For cases like this one where they arise from domestic settings, I said in the case of The State -v- Vero Gul: CR No 1047 of 2005 (Unnumbered & Unreported Judgment of 07 April 2008) at page 7:

"The most common cases of unlawful wounding, assault and grievous bodily harm arise from cases of extra marital affairs, polygamous marriages and de facto relationships where most often than not, two women either single or married get entangled and embroiled in the dispute over the right of ownership of one man.

I believe your case happened to be another one of those which regrettably had ended up in this Court. It shows that despite the Courts imposing hefty sentences to people responsible for committing this kind of offences, things have not changed drastically. This has left me to wonder whether or not the kind of sentences we the Judges have imposed has worked at all. That is, whether the sentences imposed by the Court in past similar cases have acted as public deterrence and reminder to people to change their way of behaving and thinking. I am not sure if this has worked and if people have changed!".

11. In this case, I note that the root cause of the problem was that the prisoner’s former husband had decided to bring on board a second wife. Regrettably, the woman he brought on board was a relation of the prisoner. It is so unfortunate that this has happened. As I said in Vero Gul’s case (supra) at page 8:

"Perhaps there should be a law passed to also hold the "man" be it the husband or boy friend responsible or accountable for causing the problem. The man should also be punished for either causing or contributing to the problem. I really think that there should be one but at the moment there is none".

12. For now, the prisoner admitted to wounding the victim with a knife. I accept that the prisoner acted in the way she did because she was upset, angry and frustrated that her former husband decided to get a second wife. In my view, polygamous marriage is one of the contributing factors to lawlessness in the country, especially in the Highlands. It is a practice that should be discouraged as it is unhealthy for the country. The effect of such practice is far worse than what one might think. What I have before me is an example of the kind of effect polygamous marriages may bring upon a family unit in our society. It is simply co wives fighting over the right of ownership of one man. In the end, one of the co wives ends up being victimized.

13. But in making these observations, I do not for one moment condone nor acquiesce what the prisoner did. For to my mind, there are better ways of solving this problem including taking the victim and the prisoner’s former husband to Court for adultery.

14. To my mind, the kind of offence the prisoner has committed is a common occurrence and prevalent in our society. There are many reported and published judgments by this Court on this kind of offence committed by the prisoner, especially from a domestic setting.

15. For some examples, in the case of The State -v- Kenny Rueben Irowen (2002) N2239, the prisoner, a husband of two wives pleaded guilty to unlawfully causing grievous bodily harm to his two wives. He used a bush knife to inflict wounds to them. As a result of the wounds, the victims fell unconscious and held them in confinement for a long time. The Court considered that it was a serious case of grievous bodily harm and imposed the maximum penalty of 7 years on the prisoner even though it was a guilty plea. This was because the prisoner committed the offence against two of his wives and was sentenced together.

16. The next case is The State -v- Eddie John Naopa (2003) N2411, where the prisoner pleaded guilty to the charge of unlawfully causing grievous bodily harm when he struck one of the eye of the victim with a sling shot. The Court sentenced the prisoner to 5 years imprisonment but wholly suspended it with certain conditions.

17. In the other case of The State -v- Vincent Naiwo (2004) N2710, the prisoner pleaded guilty to the charge of unlawfully causing grievous bodily harm to the victim. The victim was his sister in law and the prisoner cut her with a bush knife. The injuries were serious and life threatening. The prisoner was a first time offender and was sentenced to 5 years imprisonment.

18. The Court did not suspend any or whole of the sentence because first, the pre-sentence report did not provide sufficient and verified information on the proposed terms of suspension and secondly, the prisoner did not show any exceptional circumstances for the Court to suspend either the whole or part of the sentence.
19. The other case of unlawfully causing grievous bodily harm is The State -v- Peter Erne (1999) N1939, where the prisoner pleaded guilty to committing the crime during a drinking beer party with a group of male companion. When the victim and his friends arrived, an argument broke out and a fight ensured. During the fight, the victim received multiple knife wounds to his scalp and also other injuries to his head. He was sentenced to 2 years imprisonment but was wholly suspended on condition that he was placed on good behaviour bond for 2 years.

20. In another case of The State -v- Nickson Pari (No 2)(2001) N2033, the Court sentenced the prisoner to 4 years imprisonment but suspended 2 years on certain conditions whilst he served 2 years in prison after the prisoner pleaded guilty to unlawfully causing grievous bodily harm to the victim when he shot the victim with a shot gun in the course of committing another offence, namely armed robbery.

21. The Court suspended part of the sentence because first the prisoner was a first offender, secondly, he pleaded guilty to the crime and thirdly, he was unemployed and was living with his uncle in Lae at the time of the crime.

22. The next case of unlawfully causing grievous bodily harm is The State -v- Darius Taulo (2001) N2034. It was a case of repeated domestic wife beating over a period of time. The prisoner had very good mitigating factors such as genuine remorse, having paid compensation already according to his custom and was prepared to again pay compensation according to the victim's (his wife's) custom and the community showing preparedness to assist and see him rehabilitate.

23. The Court sentenced the prisoner to 3 years imprisonment but wholly suspended it on certain conditions including the prisoner entering into a good behaviour bond for the period of suspension.

24. In The State -v- Henry Idab (2001) N2172, the prisoner was sentenced to 5 years imprisonment but 2 years was suspended on certain conditions while 3 years was to be served in prison for pleading guilty to unlawfully causing grievous bodily harm to the victim who was a village peace officer when he and a group of men attacked the victim and cut him with a bush knife.

25. Next is the case of The State -v- Malia Pes: CR No 749 of 2001 (Unnumbered & Unreported Judgment of 22 April 2003) where the prisoner and the victim were co wives. The prisoner insulted the victim and the matter was reported to the police but the police did not act on the complaint. The prisoner attacked the victim with a weapon and the victim suffered serious injuries from deep cut to her left wrist and an open fracture of her left hand. She suffered 70% loss of function of the left arm. She was sentenced to 3 years and 3 months in prison.

26. The other case of unlawful grievous bodily harm is The State -v- Ale Anesa: CR No 472 of 1998 (Unnumbered & Unreported Judgment of 13 July 2000), a case of domestic setting, the prisoner was the first wife of the man and attacked the second wife with a bush knife. The second wife received multiple wounds to her body including a deep laceration to her skull, laceration to her right hand and forearm tendon was severed. She pleaded guilty to unlawfully causing grievous bodily harm to the second wife and was sentenced to 5 years in hard labour less time spent in pre trial custody.

27. In the other case of The State -v- Tim Poko Wasa: CR No 628 of 2001 (Unnumbered & Unreported Judgment of 14 May 2002), the prisoner and the victim were co wives of a police officer. The prisoner stabbed the victim with the knife after an argument. The victim received multiple wounds. The prisoner did not pay any compensation to the victim. The Court sentenced the prisoner to two (2) years imprisonment less time spent in custody.

28. The cases I have referred to above are cases of unlawful grievous bodily harm but I consider that it is useful to consider some comparative sentences in cases of unlawful wounding arising from domestic setting under section 322 of the Criminal Code.

29. For example, in the case of The State -v- Albina Sinowi (2001) N2175 by His Honour Kandakasi J, the prisoner was charged with one count of unlawful wounding of a co-wife which carried a maximum penalty of three (3) years. The victim suffered a broken arm bone from a blow with a stone. The prisoner paid K1,000.00 compensation to the victim and the victim and prisoner lived together again in one house without difficulty. His Honour imposed 6 months imprisonment but then suspended the sentence.

30. In my own Judgment of The State -v- Roslyn Charlie: CR No 1028 of 2004 (Unnumbered & Unreported Judgment of 27 February 2008), a case of unlawful wounding of a co-wife which carried a maximum penalty of 3 years, the victim suffered a deep wound to her head from a blow from the prisoner with a kitchen knife. I imposed one (1) year imprisonment term but wholly suspended the sentence and placed the prisoner on good behaviour bond because the prisoner was a first time offender and had a very large family of nine children to look after. Because the prisoner did not pay any compensation to the victim, I also ordered her to pay K1,000.00 to the victim.

31. In the case of Vero Gul (supra), I followed my own judgment of Roslyn Charlie (supra) and sentenced the prisoner after she pleaded guilty to unlawfully causing grievous bodily harm to another woman who had an extra marital affair with her husband to 1 year imprisonment but wholly suspended it. I did so because amongst other reasons, she was the only bread winner for the family and had to care for her two children after her husband left her for the victim.

32. The next case of unlawful wounding is The State -v- Moma Robert: CR No 440 of 2002 (Unnumbered & Unreported Judgment of 07 May 2002), where the prisoner and the victim were co wives. The prisoner inflicted multiple wounds on the victim with the knife after an argument over the victim destroying the prisoner’s garden. The prisoner did not pay any compensation to the victim. The Court sentenced the prisoner to three (3) years imprisonment in hard labour.

33. The final case of unlawful wounding is The State -v- Laken Alois Yamain: CR No 249 of 2000 (Unnumbered & Unreported Judgment of 04 September 2000), where the victim was having an adulterous affair with the husband of the prisoner. The prisoner went after the victim and confronted her. She attacked the victim with a stone and wounded the victim on her head and hand. The victim received two lacerations on her head and a swollen left hand and was deformed. There was de facto provocation. The Court sentenced the prisoner to one (1) year imprisonment in light labour, however the sentence was wholly suspended and the prisoner was ordered to pay compensation of K200.00 to the victim.

PRESENT CASE

34. In the present case, it is a case of unlawful grievous bodily harm. It attracts a maximum penalty of 7 years in a serious or worst case. If it is not a serious or worst case and where it is a guilty plea, the question is, what is the starting point? By looking at the above cited cases of unlawful grievous bodily harm, sentences range from 2 years up to 7 years even in guilty plea cases like in the case of Kenny Rueben Irowen’s case (supra).

35. Mr Kumo submits that whilst this offence carries a maximum penalty of 7 years imprisonment, this Court has discretion under section 19 of the Criminal Code to impose a lesser sentence and invites me to give the prisoner a non custodial sentence to be wholly suspended based on the above mitigating circumstances. He submits that a sentence of 3 years be imposed but wholly suspended on condition.

36. On the hand, Mr Kesan submits that the maximum penalty for unlawfully causing grievous bodily harm is 7 years imprisonment but the Court may impose a reduced sentence in accordance with section 19 of the Criminal Code but in light of the aggravating factors against the prisoner, he submits that a sentence of five years imprisonment term should be imposed and there should not be any suspension of the sentence either in part or wholly.

37. I take into account the factors in favour of the prisoner that Mr Kumo of counsel for the prisoner in his submission gave on her behalf. First is the prisoner’s personal details which I note are; she is 25 years old and comes from Yoropini village in Pangia of the Southern Highlands Province. She was once married and out of that marriage, she has a son who is now 6 years old. She is a member of the Catholic faith and is educated up to Grade 10. She did some secretarial courses but presently is unemployed.

38. She has been out on bail since 15 July 2006 after she was arrested and charged with this offence on 12 July 2006. In terms of mitigation, I take into account that first, the prisoner has no prior conviction and is a first offender. Secondly, she has pleaded guilty to the offence, thus it is a demonstration of her accepting criminal responsibility for her actions. She pleads for mercy and leniency.

39. Thirdly, there is de facto provocation as the victim was the first to attack the prisoner. The victim was armed with a knife. The prisoner acted at the spur of the moment to defend herself and grabbed the knife from the victim and swung at the victim. She did that because after a struggle with the victim, she fell down and the victim was standing on her as she was lying on the ground.

40. Fourthly, she had been living with shame and guilt all this time since leaving school after her former husband promised her further studies if she married her. The former husband is equally responsible for the situation the prisoner and the victim are in today.

41. I also take into account the factors against the prisoner. Here, I accept Mr Kesan for the State’s submissions for a non custodial sentence for two principal reasons. First, the offence is prevalent in the community and no matter how many times this Court has imposed hefty imprisonment sentences, these kinds of offences seem to be increasing instead of decreasing. I also agree with his submission that it would not be surprising to find that many such cases are being reported in law books. The number of cases I have referred to above is testament to Mr Kesan’s submissions.

42. Secondly, the injuries sustained by the victim are serious and life threatening. According to the Medical Report of Ialibu District Hospital dated 17 August 2006, the victim has lost the first and second toes of her left leg and the impairment of the leg is 80%. In other words, her two toes of the left leg were completely severed. This means that the victim has lost these two toes for life. They are serious and permanent disabilities for which she will live with for the rest of her life as a result of the actions of the prisoner. This shows that the prisoner had applied excessive force when she struck the victim with the knife on her toes.

43. This case is similar to the cases of Roslyn Charlie (supra) and Vero Gul (supra) because they arose from domestic setting, where co wives end up fighting over a common man. In those two cases, I imposed a sentence of 1 year imprisonment term but wholly suspended the sentences because I considered that the prisoners were the bread winners of their families after their husbands left them for other women. But they were unlawful wounding cases where the maximum penalty is 3 years under section 322 of the Criminal Code. Such an offence is considered the less serious of the assault cases under the Criminal Code. As a result, it attracts a lesser penalty than the other ones.

44. I will use 3 years as the head sentence and will increase it or decrease it depending on the aggravating and mitigating factors present in this case. At the same time, under section 19 of the Criminal Code, the Court has discretion to impose a lesser sentence for this offence including suspending the sentence. I will follow my own judgment of The State -v- Pal Binowi: CR No 539 of 2008 (Unnumbered & Unreported Judgment of 25 August 2008) where I imposed a head sentence of 3 years but wholly suspended the sentence on a number of conditions which inter alia included the prisoner to be of good behaviour for a period of 3 years and pay compensation of K1,000.00 to the victim within 6 months.

45. There, I suspended the entire sentence because first, there was a Means Assessment Report strongly supporting a suspended sentence. It showed that the prisoner had the financial capacity to pay compensation and secondly, was willing to pay compensation. Secondly, the prisoner had reported at earlier assault on him by the victim to the police and village leaders for the apprehension and charging of the victim but they all turned a blind eye on him. They said that he was a mentally affected person and was simply lying.

46. I distinguish Pal Binowi’s case (supra) from this case in that, Pal Binowi’s case did not arise from a domestic setting like in the present case. Thus, in this case, as I said above, I am not going to suspend any of the sentence although I bear in mind that I can suspend it by considering some of the factors as set out in The State v. Thomas Waim [1998] PNGLR 360, His Honour Injia J, (as he then was) where His Honour said:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor -v- Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State (1988-89) PNGLR 271 at 275; Good character and good family background: The State -v- Frank Kagai [1987] PNGLR 320; State -v- Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986] PNGLR 91."

47. The main reason for me to decline suspending the sentence is because this type of offence is prevalent in our society. As I have observed earlier, it is common amongst co wives and in my view the offence is unhealthy for the family unit. Co wives who vet their frustration and anger on one another by assaulting each other do not realize until it is too late that one way or the other, it is the children who will suffer.

48. At the same time, husbands are equally at fault and must accept part of the responsibility for the situation the co wives find themselves in, like in this case the prisoner and the victim are in now. And so, the Court must weigh out the interest of the prisoner and the interest of the society before suspending in part or wholly the sentence it may impose on the prisoner. As I said, I will not suspend the sentence because the prisoner must realize that her case is not an isolated one. In my view a custodial sentence is appropriate and will not only act as a personal deterrence for her but also a public deterrence for those would be offenders.

49. I am satisfied that the prisoner is remorseful. She is sorry for the wrong and has openly and unwittingly apologized to the victim. I also take into account that she is a first offender. She has not broken any law before and that she presently live on her own with her 6 year-old son after leaving her former husband. I consider that the two most compelling reasons for me to incline towards giving the prisoner a lesser custodial sentence are these; first the former husband has left the prisoner and her 6 year old son for the victim. I suppose there is no "father figure" at home at this point in time for the love and care for both the prisoner and son.

50. Secondly, the prisoner was promised further education by her former husband and left school when she was attending High School at Pangia. Of course, when she fell for the former husband’s promise, it turned out to be an empty promise. I accept that she is left to fend for herself and her son. But in my view, it is a direct consequence of her actions of which she must live with for now. In all the circumstances of the case, I consider that a sentence of 2 years imprisonment in hard labour is called for in the interest of assuring the community that the Courts will protect the community against such violent behaviour.

51. In the end, the prisoner is sentenced to 2 years imprisonment in hard labour. A warrant of commitment will be issued shortly.

Sentence accordingly.

_____________________________________

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner