State v Mol [2008] PGNC 239; N3707 (19 March 2008)

N3707

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 556 OF 2007

BETWEEN:

THE STATE

AND:

PETER MOL
Prisoner

Mt Hagen: David, J.
2008: 19th March

CRIMINAL LAW – sentence – grievous bodily harm – guilty plea – victim assaulted with bush knife – injury to right eye resulting in 25% loss of visibility - victim is prisoner’s wife – first offender – compensation paid – de facto provocation - prisoner had history of violence against the victim – partial custodial sentence of three (3) years IHL less time spent in custody – strict conditions applying whilst serving suspended sentence - ss.19 & 319 Criminal Code.

Cases cited:

The State v. Ngetto Rex Rongo (2000) N2035
The State v. Darius Taulo (2001) N2034
The State v. Kenny Reuben Irowen (2002) N2239
The State v. David Saun (2003) N2409
The State v. Eddie John Naopa (2003) N2411
The State v. Amos Kiap (2003) N2452
The State v. Anton Vail (2003) N2473
The State v. Lucas Huliahwere (2003) N2544
The State v. Larsen Talian, CR. 749 of 2001, 22 April 2003
The State v. Malya Pes, CR. 1241 of 2001, 16 May 2002
The State v. Tim Poko Wasa, CR. 628 of 2001, 14 May 2002
The State v. Steven Dua, CR.1525 of 2006, 16 August 2007

Counsel:

Mr. J. Waine, for the State
Mr. P. Kumo, for the Prisoner

SENTENCE

19 March, 2008

1. DAVID, J: INTRODUCTION: On 19th March 2008, I delivered a brief ex tempore judgment and I undertook to publish my full reasons later. This I now do.

2. The State presented an indictment charging Peter Mol, (the Prisoner) of Banz No. 1 village, North Waghi, Western Highlands Province with unlawfully causing grievous bodily harm to one Betty Pora (the victim) on 28 August 2006 at Banz in Papua New Guinea contrary to s.319 of the Criminal Code (the Code). The Prisoner pleaded guilty. The Court accepted the Prisoner’s guilty plea and convicted him of the charge after reading the depositions and having been satisfied that there was sufficient basis to support the charge.

3. The indictment was preferred as follows:

PETER MOL of Banz No. 1 village, North Waghi, Western Highlands Province, stands charged that on the 28th August 2006, at Banz in Papua New Guinea, he unlawfully did grievous bodily harm to one BETTY PORA.

FACTS

4. The Prisoner and the victim are married.

5. Prior to 28 August 2006, there had been some violence between them when the Prisoner would normally assault the victim. It came to a stage when the victim had to leave her home and went to her village. She was away for sometime.

6. On 28 August 2006, the Prisoner went to the victim’s village to bring her back to his home. At the time, the victim and another lady were picking coffee cherries in a garden. The Prisoner armed with a bush knife approached the victim and tried to assault her with it. He was not able to assault the victim directly because people had intervened. In the course of that, the Prisoner poked the victim with the bush knife on her right eye causing injury to it. The victim lost twenty five percent (25%) visibility as a result of the injury.

7. The Prisoner’s action was not excused by law.

LAW

8. Section 319 of the Criminal Code creates the offence and prescribes the penalty. This is a serious offence and the Prisoner could be jailed for up to seven (7) years, subject to the exercise of the Court’s discretion under s.19 of the Code. I set out the relevant provision as follows:

319. Grievous bodily harm.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

9. The offence is prevalent in our society and sentences that have been imposed vary. I will refer to some of the cases where the prisoners entered guilty pleas and those that have been cited by counsel in the latter part of this judgment in determining the appropriate sentence to impose in this instance.

10. In The State v. Issac Wapuri (1994) PNGLR 271, the Prisoner assaulted his cousin’s wife with a hand brake cable of a motor vehicle across her face which resulted in the victim suffering a permanent injury of ninety percent (90%) loss of vision to her left eye. This occurred after the Prisoner, who was living with his cousin and his wife at the time of the offence, refused the victim’s advances towards him for sexual intercourse and the scattering of the Prisoner’s clothes all over the place by the victim. The disruption of the Prisoner’s clothes angered him and the assault ensued.

11. The Prisoner was sentenced to eighteen (18) months imprisonment in hard labour less five (5) months for the time spent in custody. The Court having considered that the time spent by the Prisoner in custody was sufficient punishment then suspended the balance of the term and placed the Prisoner on a good behaviour bond for twelve (12) months. In addition to that, the Court also ordered the Prisoner to pay compensation to the victim in accordance with the custom of the victim’s clan consisting of Five Hundred Kina (K500.00) in cash and five (5) pigs to the value of about Eight Hundred Kina (K800.00) and such to be paid within one (1) month and in default, two (2) months imprisonment.

12. In The State v. Darius Taulo (2001) N2034, the prisoner had a history of beating up his wife who was the victim over a number of years prior to being charged. Those beatings were very serious and near death experiences.

13. The prisoner was sentenced to three (3) years imprisonment in hard labour. However, the whole of the sentence was suspended with strict conditions applying including the prisoner; entering into a recognizance with a surety of Five Hundred Kina (K500.00) to be of good behaviour for the suspended period; abstaining from alcohol consumption; abstaining from assaulting his wife in any way and rendering free community service to a designated public institution. The Court considered that a non custodial sentence was appropriate because the prisoner pleaded guilty; he was a first time offender; he expressed genuine remorse and had already paid compensation; he was willing to pay further compensation in accordance with his wife’s custom; it was in the best interest of the children of the marriage; the victim preferred compensation supported by a pre-sentence report; the prisoner was not a danger to society and the society would help to rehabilitate him.

14. In The State v. Kenny Reuben Irowen (2002) N2239, the prisoner was convicted of two (2) charges of causing grievous bodily harm to two (2) of his three (3) wives by severely assaulting them with a bush knife after forcing them to strip naked. One received a deep cut on her left shoulder resulting in twenty five percent (25%) permanent loss of function of her left shoulder. The other received several cuts to her legs and her left ring and little fingers.

15. The Court considered the case to be of the worst type for the offence and imposed the maximum prescribed penalty of seven (7) years imprisonment in hard labour for each of the two (2) charges to be served cumulatively. Factors of aggravation including the prisoner not showing remorse and not showing any preparedness to change his ways towards the victims outweighed the prisoner’s plea of guilty and being a first offender.

16. In The State v. David Saun (2003) N2409, the prisoner was involved in a drunken brawl with the victim and another person when he was hit with a broken piece of exhaust pipe causing a deep wound to his left side. In retaliation, the prisoner picked up a piece of sawn timber and threw it at his attackers including the victim. The victim fell to the ground upon contact hurting his head. The victim was taken to the hospital and recovered, but with an estimated thirty percent (30 %) permanent loss of the use of one of his eyes.

17. A sentence of three (3) years was imposed wholly suspended with strict conditions applying. The Court considered in the prisoner’s favour factors such as his guilty plea with no priors, customary compensation was paid and his expression of remorse.

18. In The State v. Eddie John Naopa (2003) N2411, the victim was amongst a group of female students returning to their dormitory at a boarding high school after attending a Scripture Union fellowship between 09.00 pm and 09.30 pm when a group of boys including the prisoner grabbed hold of the victim. The victim struggled with her captors to free herself and in the process her left fingers were cut with a knife held by the person who grabbed her. As she tried to escape, she fell into a drain. She got up and tried to run away when the prisoner shot her with a stone using a sling shot. The stone landed in the victim’s right eye. She received treatment for her injuries, but this did not prevent the victim from completely losing the use of her eye. It was a One Hundred percent (100 %) permanent loss of her right eye. Means Assessment and Pre Sentence Reports were provided.

19. The Court imposed a sentence of five (5) years and had three (3) years of that suspended with strict conditions applying including compensation and community based work orders. The Court took into account factors such as the prisoner’s guilty plea with no priors; he was a relatively young offender and his expression of remorse. Compensation paid by the prisoner’s parents and relatives was to be treated as a loan in exchange for the prisoner providing free labour under the supervision of the Probation Service. That sentence reflected the fact that the prisoner was found to have committed the offence with a view to committing another serious offence, such as abduction and rape against an innocent schoolgirl.

20. In The State v. Lucas Huliahwere (2003) N2544, the prisoner had a history of beating up the victim who was his second wife. On this particular occasion, the prisoner hit the victim with a piece of timber on her left arm three (3) times and then hit her head causing her to fall to the ground in pain. While the victim was on the ground, the prisoner then stood on a part of the victim’s left arm with one of his feet, held her by the wrist of her left arm with his two (2) hands and gave it a tug which resulted in a fracture of her forearm. She underwent surgery for an intramedullary rod to be inserted and the broken arm was in a cast for six (6) weeks.

21. The Court considered the case to be a serious one, but not necessarily the worst type and imposed a sentence of five (5) years imprisonment in hard labour less time spent in custody. The prisoner’s violent behaviour was taken as aggravating. Against that was the prisoner’s guilty plea; that he had no priors and surrendering to the police after the crime. Not much weight was placed on the prisoner’s expression of remorse which was manifested by payment of compensation.

22. In The State v. Anton Vail (2003) N2473, the prisoner and the victim who was his wife were invited to attend a dance at the Hamamas Hotel in Rabaul which they accepted. However, because there was a feast at a nearby village being held at about the same time, the prisoner attended the feast and the victim attended the dance alone.

23. The prisoner returned from the feast in the wee hours of the morning and started questioning the victim if she danced at the said Hotel. When she admitted that she did after assisting with collecting gate-takings, the prisoner became furious and assaulted her. The prisoner initially punched the victim. He then got a piece of wood with which he hit the victim on her right forearm.

24. A medical examination was conducted following the assault. It revealed that there was bleeding from the right ear with a laceration on the wall of the ear canal. There were facial injuries including a painful left jaw as well. X-ray revealed that the right forearm was fractured with no displacement. The victim was treated for those injuries and her right forearm was kept in a plaster cast for six (6) weeks.

25. The prisoner was sentenced to three (3) years imprisonment in hard labour however the whole term was suspended on condition that the prisoner paid Six Hundred Kina (K600.00) as compensation to the victim within fourteen (14) days and the prisoner entering into his recognizance to keep the peace and be of good behaviour for three (3) years. Factors taken into account in mitigation were the prisoner’s guilty plea; that he had no priors and his cooperation with the police.

26. In The State v. Amos Kiap (2003) N2452, the prisoner had a long history of violence towards the victim who was his wife and members of her immediate family since marrying the victim. He regularly appeared before the Village Court as a result of such attacks.

27. On this particular occasion, the prisoner attacked the victim from her back with a sharp instrument twice as she was proceeding towards the Supa Value Store in Mt Hagen after finishing work at a local bank. The victim sustained deep cuts to her head and she fell to the ground unconscious. The victim was rushed to the Mt Hagen General Hospital where she received medical attention. The victim’s Medical Report showed that she sustained multiple wounds to her head which were caused by stone and knife and that she lost about 200 mls of blood.

28. The victim left the matrimonial home with the three (3) children of the marriage due to his brutality.

29. The prisoner was sentenced to six (6) years imprisonment in hard labour less time spent in custody. However, the whole of the balance of the term was suspended and the prisoner released on probation with strict conditions applying. Two (2) of the factors that the Court considered in imposing such a sentence was the prisoner’s long history of violence against the victim and her relatives as well as the fact that the victim would not receive any redress at all for the suffering she endured at the hands of the prisoner by his incarceration. Factors taken into account in mitigation were the prisoner’s guilty plea; that he had no priors and his expression of remorse.

30. The cases of Isaac Wapuri, David Saun and Eddie John Naopa involve permanent injuries to an eye of the victim and the gravity of the injuries sustained in each case differs. The injuries were caused by or resulted from being struck by a solid object in the form of a hand brake cable in the case of Isaac Wapuri, a sawn piece of timber in the case of David Saun and a stone in the case of Eddie John Naopa.

31. The cases of Darius Taulo, Kenny Reuben Irowen, Lucas Huliahwere, Anton Vail and Amos Kiap all involve wife bashing. In the cases of Darius Taulo, Lucas Huliahwere and Amos Kiap, each of the prisoners had a history of violence against their wives. Anton Vail was a one off incident. In Kenny Reuben Irowen, the attacks on the victims were described as savage and severe and the prisoner had previously severely attacked one of the victims which required hospitalisation. These cases generally show that sentences have been severe where the offenders have had histories of violence against their victims.

THE PRESENT CASE

Allocatus:

32. The Prisoner said he was a first time offender and expressed remorse. He said he will not repeat what he did and will stay harmoniously with his family.

Submissions on behalf of the Prisoner

33. Mr. Kumo of counsel for the Prisoner recounted the Prisoner’s antecedents as follows:-

1. The Prisoner was actually from Dubola village in Banz aged twenty two (22) years and had received formal education up to Grade Ten (10) at the Minj High School;

2. The Prisoner is married with two children aged three (3) and five (5) years respectively;

3. The Prisoner is unemployed;

4. The Prisoner is a member of the Nazarene Church.

34. Mr. Kumo further submitted that the following factors be taken into account in mitigation:-

1. The Prisoner was a first time offender;

2. The Prisoner pleaded guilty;

3. Compensation payment consisting of K200.00 in cash and a pig valued at K600.00 was given to the victim and her relatives. This resulted in the restoration of peace and harmony within the community;

4. There was de facto provocation in that the victim was not returned to the Prisoner despite his mother killing a pig for the victim’s family and this resulted in the action he took;

5. The Prisoner had been in custody since his arrest on or about 8 January 2007, a period of about one (1) year and two (2) to three (3) months.

35. As to the appropriate penalty, counsel submitted that the maximum penalty of seven (7) prescribed under s.319 of the Code is to be considered together with s. 19 of the Code.

36. Counsel cited the cases of The State v. Larsen Talian, CR. 749 of 2001, 22 April 2003, The State v. Malya Pes, CR. 1241 of 2001, 16 May 2002 and The State v. Tim Poko Wasa, CR. 628 of 2001, 14 May 2002 as examples of sentences imposed by the Court for the offence under consideration.

37. In Larsen Talian, the victim was the father in law of the prisoner who was married to the victim’s daughter. An argument developed over the marriage. The prisoner used a bush knife to chop the victim’s left wrist. Thirteen months later, the left hand grip was incomplete. There was also contraction and clawing. The prisoner was convicted following a trial.

38. A sentence of six (6) years imprisonment was imposed less time spent in custody, but the remaining term was wholly suspended and the Prisoner released on probation on condition that compensation of Five Thousand Kina (K5,000.00) was to be paid by a given date.

39. In Maliya Pes, the prisoner and the victim were co-wives. The prisoner attacked the victim and inflicted injuries to the victim’s left wrist which severed most of the tendons. There were also lacerations to the hip, scalf and middle forearm–dorsal aspect, etc. The victim suffered seventy percent (70%) loss of function to her left hand due to stiffness, loss of sensation and wasting of muscle.

40. The Court imposed a sentence of three (3) years and three (3) months.

41. In Tim Poko Wasa, the prisoner and the victim were co-wives. A fight occurred between them. The victim was stabbed by the prisoner using a bush knife several times on her skull and her right small finger. The small finger was deformed and resulted in seventy five percent (75%) permanent loss of its function.

42. On a guilty plea, the presence of de facto provocation, the use of an offensive weapon and that no compensation was paid, a sentence of two (2) years imprisonment in hard labour was imposed.

43. Counsel suggested that a term of two (2) years is appropriate in this case less time spent in custody. He also suggested that the remaining period be wholly suspended and the prisoner be released either on a good behaviour bond or on probation.

Submissions on behalf of the State

44. Mr. Waine referred the Court to a case I dealt with last year. That was the case of The State v. Steven Dua, CR.1525 of 2006, 16 August 2007. In that case, the Prisoner had a history of violence towards the victim. The prisoner and the victim were aged forty six (46) years and about forty (40) years respectively. The couple had been married for a long time. They had seven (7) children whose ages at the time of the crime ranged from seven (7) years to twenty three (23) years and the eldest was married with three (3) children. The victim left the matrimonial home more than seven (7) months prior to the commission of the crime at the behest of the couple’s eldest son and village leaders because she was being ill-treated, harassed and assaulted time and again by the prisoner who suspected her of committing adultery or cheating on him.

45. Two (2) weeks prior to the commission of the crime, the Prisoner went on a business trip. On his way back, he stopped over at a village next to the victim’s village (the neighbouring village). The prisoner later met the victim at a location and had an argument with her. He then arranged for a village court type sitting to hear his claim for compensation against the victim for injuries he alleged were previously inflicted upon him by the victim, but was unsuccessful. His intention was actually to force the victim to return with him. The Prisoner overnighted at the neighbouring village. The next day, armed with a bush knife, the Prisoner proceeded to the victim’s village where he confronted her. He assaulted the victim with the bush knife causing serious cuts to both of her legs. Her left leg was also fractured.

46. The prisoner was sentenced to three (3) years imprisonment in hard labour less time spent in custody leaving one (1) year nine (9) months and eight (8) days to be served. Of the remaining term, the prisoner was ordered to immediately serve three (3) months and eight (8) days at the Baisu gaol and after its completion he was to be discharged to serve the balance of the remaining term of one (1) year and six (6) months on suspension with strict conditions applying.

47. Counsel suggested that a sentence of three (3) years was appropriate in this case.

GENERAL REMARKS IN THE LIGHT OF SUBMISSIONS OF COUNSEL

48. This is a case where the Prisoner was trying to assault the victim with a bush knife in his possession. People intervening prevented what might have been a nastier situation than what had actually happened. As it turned out, the Prisoner managed to poke the victim on her right eye with the tip of his bush knife. The victim now has a twenty five percent (25%) visual incapacity as a result of the injury sustained. This is confirmed by the Medical Report of Dr. George Jacob, an Ophtalmologist with the Mt. Hagen General Hospital dated 6 September 2006. There is no doubt that the victim’s looks has been affected permanently if the injury cannot be corrected surgically.

49. None of the cases referred to by counsel relate to victims suffering eye injuries, however they are of instructive value in so far as appreciating the sentencing trend for the offence associated with marriages or domestic situations is concerned.

50. Out of the three (3) eye injury cases cited earlier, this case comes a little bit closer to the case of David Saun.

51. I accept in this case that the victim left the matrimonial home, but this was under circumstances caused by the violent behaviour of the Prisoner. There is evidence showing that the prisoner had constantly beaten up the victim during their marriage of four (4) years culminating in the victim leaving him in early August 2006 after another beating.
52. Wife beating is prohibited by law yet husbands continue to assault their wives in our society with total disregard for their humanity for all sorts of reasons and sometimes they end up in death: see observations of Kandakasi, J about wife beating in The State v. Ngetto Rex Rongo (2000) N2035. Wives should be respected by their husbands just as husbands expect their wives to respect them.

53. The Court does not condone in any way the action of the Prisoner in using a bush knife to assault the victim. Whether or not the injury to the victim’s eye was caused by the back or blunt side, the sharpened side or tip of the bush knife as is the case here, it is in my view immaterial. It could nevertheless be determinative in assessing the gravity of the offence in a particular case. A bush knife is in itself a dangerous weapon with the potential of causing grave injury to a person coming in contact with it when shoved or swung with force, therefore, picking up a knife of any sort every time there is an argument is a practice that must be strongly discouraged. Moreover, the calamitous consequences of the use of a knife in assault related or homicide cases are plenty that it is necessary to continue to sound out this warning. In fact, easy access to all sorts of knives in shops to the general populace and using them to commit the types of offences alluded to above makes the instrument more dangerous than firearms.

SENTENCE

54. In all the circumstances of this case, having considered all the factors for and against the Prisoner including the law, prevalence of the offence, the Prisoner’s guilty plea and being a first time offender, expression of remorse in Court manifested by the payment of compensation, his antecedents, there was de facto provocation, the nature of injuries inflicted upon the victim using an offensive weapon, his history of violence, matters raised on allocatus, the submissions of counsel and the cases cited, I would consider a sentence of three (3) years imprisonment in hard labour as appropriate in this case. From the head sentence, I will deduct one (1) year, two (2) months and two (2) weeks for the time spent in custody awaiting trial calculated as at the date of judgment leaving a balance of one (1) year nine (9) months and two (2) weeks to be served. Incarceration will be at the Baisu gaol. I also consider that an immediate custodial sentence is called for however, I will suspend one (1) year and six (6) months with strict conditions to apply.

55. In the exercise of my discretion under s. 19 of the Code, I make the following orders:-

1. That the Prisoner immediately serve three (3) months and two (2) weeks at the Baisu gaol;

2. That the Prisoner shall contact the Mt. Hagen Provincial Probation Officer immediately after discharge from gaol.

3. That the Prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him to do so.

4. That the Prisoner shall enter into his own recognizance to keep the peace and be of good behaviour during the period of suspension.

5. That the Prisoner shall completely refrain from consumption of any alcoholic or intoxicating substance during the period of suspension.

6. That the Prisoner shall not change his residential address at Dubola village, Banz, Western Highlands Province unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to do so and the reason for the proposed change.

7. That the Prisoner shall not leave the Western Highlands Province without the permission of this Court during the period of suspension.

8. That the Prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours.

9. During the period of suspension, the Prisoner shall provide free community service of eight (8) hours per day every Thursday at the Banz Police Station or at such other institution of the State or Western Highlands Provincial Government requiring the services of the Prisoner to be determined and supervised by the Mt. Hagen Provincial Probation Officer. The Prisoner must obey all instructions from the administrative head of the relevant institution where he provides his service in consultation with the Mt. Hagen Provincial Probation Officer.

10. The Prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance.

In the event that any one of the conditions is not complied with, then the Prisoner’s probation will be breached and he will be arrested and sent to gaol at Baisu to serve the balance of the term which I have suspended.

Ordered accordingly.

______________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner