State v Aiwa [2008] PGNC 321; N3330 (7 May 2008)

N3330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1704 OF 2006

THE STATE

V

CAROLINE AIWA
Prisoner

Waigani: David J
2008: 6 & 7 May

CRIMINAL LAW - sentence - assault occasioning bodily harm - guilty plea - fourteen months imprisonment in hard labour
- compensation of victim - s8.19 and 340 (1) Criminal Code.

Cases cited:

The State v. Sabuin, Unreported Judgment of Justice Cannings, CR Nos. 921 and 9220/2006, 25 August 2006
The State v. Dick Meaea (2006) N3163
Counsel:

T. Ai and J. Sebby, for the State
O. Oiveka and E. Wurr, for the Prisoner

DECISION ON SENTENCE

7 May, 2007

1. DAVID, J: The State presented an indictment against Caroline Aiwa (the Prisoner) who is from Boromil village, Gumine District in the Simbu Province charging her that on 27 April 2006 at the Gordons market in Papua New Guinea she unlawfully assaulted one Sila Kairi (the victim) and by doing so caused her bodily harm contrary to s.340 (1) of the Criminal Code (the Code). The Prisoner pleaded guilty. A conviction was recorded after the Court accepted the Prisoner's guilty plea.

2. The State alleged no prior convictions against the Prisoner

BRIEF FACTS

3. The Prisoner pleaded to these brief facts which were presented for the purpose of arraignment.

4. On 27 April 2006 at about 1.00 pm at the Gordons market, the victim was busy buying betel nut when suddenly she was attacked from behind. The victim turned around to face her assailant when she noticed the Prisoner holding a short metal rod which was swung at her. The victim put her hand up to defend herself and was hit on her right pointer fracturing it. As a result of the impact of the blow, the victim fell to the ground and was assisted by others. The incident was reported to the Gordons Police Station and the victim was later taken to the Port Moresby General Hospital where she was examined and treated.

5. The Prisoner had no reason to take the law into her own hands when she attacked the victim in the manner that she did and causing her to sustain injuries contrary to s.340 (1) of the Code.

INJURIES SUSTAINED

6. The medical report issued by one Dr. Koensong of the Port Moresby General Hospital dated 1 May 2006 (the medical report) confirms that a physical examination was conducted on the victim after she reported to the Adult Out-patient Department on 27 April 2006. She sustained a painful swollen right hand with reduced movement at the time. X-ray taken revealed that the victim had a fractured right second phalanx with displacement. She was treated using local anesthetics when a splint was applied and pain killers were also administered. She was to be reviewed after four weeks.

ALLOCATUS

7. The Prisoner admitted committing the crime she has been indicted with and said sorry for her action. She said the victim and her husband are family friends and they used to enjoy being in the company of each other before the incident. She also explained that her action was the result of frustrations that had accumulated as a result of the non-repayment of monies she lent to persons, she said, were the victim's relatives and who were introduced to her by the victim. The Prisoner's motor vehicle was also used. The Prisoner sought the assistance of the victim to locate the debtors, but upon her refusal, this infuriated her resulting in the assault. The Prisoner also asked the Court to impose a lenient sentence; that she be released on a good behaviour bond considering that her husband was unemployed; she had grown up children attending school who depended on her for bus fare, school fees and lunch money and this would also give her time to compensate the victim.

ANTECEDENTS

8. The Prisoner is aged thirty five years. She is the first of three siblings in the family whose parents are alive. She is educated up to Grade 8. She is married with five children and resides at the Nine Mile cemetery grounds. The Prisoner is baptized as a member of the Pentecostal church. She is unemployed, but sells betel nut to sustain her family. As alluded to earlier, the Prisoner has no prior convictions.

THE LAW

9. Section 340 (1) of the Code creates the offence as well as prescribing the penalty. The maximum penalty is three years. I set out the provision below:-

340. Assaults occasioning bodily harm.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

(2)

10. I have not been referred by counsel to any sentencing guidelines suggested by the Supreme Court nor am I aware of any. However, it is trite law that the maximum prescribed penalty is always reserved for the cases of the worst category for a particular offence. In The State v. Sabuin, Unreported Judgment, CR Nos.921 and 922 of 2006, 25 August 2006, a case cited by the defense, three men pleaded guilty to assaulting another man after being indicted under s.340 (1). This was a fight amongst friends who were all drunk at the time. The victim was badly assaulted and was admitted to a hospital a day after the incident. Amongst the injuries sustained were a right pneumothorax (air between chest wall and lung) and a ruptured spleen. Mitigating factors taken into account were that the victim provoked the offenders, their cooperation with the police, their pleas of guilty, their expression of remorse, they were first offenders and it was a fight amongst drunken friends instigated by the victim. The aggravating factors were that this was a vicious mob attack involving punching and kicking, no reconciliation had taken place, the prisoners did not voluntarily surrender after the incident and they were not youthful offenders. Justice Cannings considered that eighteen months be the starting point to be adjusted upwards or downwards depending on the presence of factors of mitigation and aggravation. Thus, the more mitigating factors there are, the more likely for the head sentence to be below the starting point and conversely the more aggravating factors there are, it is most likely for the head sentence to surpass or be at the starting point. His Honour imposed non custodial sentences with strict conditions applying including payment of compensation by each offender; one was sentenced to eighteen months imprisonment and the other two were each sentenced to two years imprisonment for their varying degrees of involvement in the commission of the crime less the periods of pre-trial custody.

11. In The State v. Dick Meaea (2006) N3163, the victim was assaulted in a mob attack by three young boys. The victim was kicked and punched causing serious multiple bodily injuries to his person one of which was the loss of two upper teeth. His Honour, Justice Kirriwom in considering it not to be the worst case of its kind imposed a non custodial sentence of twelve months in hard labour with strict conditions including the payment to the victim of Kl,OOO.OO as compensation within six months of passing judgment. The Court had the benefit of a Means Assessment Report. Factors taken into account in mitigation were; the prisoner's guilty plea; his expression of remorse, his cooperation with the police; he was a youthful offender; he had young family with a wife and a child who was less than a year old; he was a fresh school leaver gainfully employed with his own family to manage, he was a first offender, his willingness to pay compensation to the victim, he had a supportive report and reference from his employer and had attended court regularly up to the time of his trial. The involvement of alcohol was considered as an aggravating factor.

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

12. Ms. Werr of counsel for the Prisoner submitted that the following mitigating factors should be taken into account in the Prisoner's favour and they are; the prisoner's guilty plea; she was first time offender; co-operation with the police, expression of remorse, there was provocation on the part of the victim and no permanent injuries were sustained by the victim. Counsel suggested that the appropriate sentence that the Court should impose in the exercise of its discretion under s.19 of the Code was a term of eighteen months wholly suspended with strict conditions applying including an order for compensation to be paid to the victim.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

13. Mr. Sebby of counsel for the State submitted that the aggravating factors in this case were that the Prisoner took the law into her own hands having become frustrated by the non-recovery of monies due to her from the relatives of the victim. Counsel contended that according to the victim's instructions, she was unable to make use of her injured finger; it was a permanent injury. He also argued that there was evidence showing that this was the second time that the Prisoner had assaulted the victim and this demonstrated the Prisoner's persistence in pursuing the recovery of her monies unlawfully and it also displayed her attitude and disrespect for the law. He further submitted that the Prisoner's expression of remorse was not genuine in that given the alleged friendship or the nature of the relationship between the Prisoner and the victim and her husband, it had taken all this time to express it in Court. Counsel suggested that a sentence between eighteen to twenty four months be imposed.

GENERAL REMARKS

14. Whilst I accept most of the mitigating factors advanced in favour of the Prisoner, I agree with counsel for the State that the expression of remorse lacks genuineness. If, as has been claimed by the Prisoner on allocatus and in submissions advanced on her behalf by her counsel, the victim and her husband are family friends, something tangible would have been done to show that there was reconciliation. It is an accepted custom in many parts of our country that some form of compensation is usually paid to victims and their relatives by perpetrators of troubles or crimes to restore peace and harmony within the community. I am aware that the societies from which the Prisoner and the victim originate from practice that custom. The Prisoner is only now willing to compensate the victim over the incident, which is an offer made on the eve of sentence, over two years after the incident.

15. I also do not accept that the Prisoner co-operated with the police. She denied the assault in the Record of Interview conducted on 7 September 2006.

16. Whilst I agree with counsel for the State that there is evidence that the Prisoner had assaulted the victim on a previous occasion, this aspect will not be taken as overbearing in the light of the Prisoner's previous lack of prior convictions.

17. As to whether there is permanency in the injury to the victim's affected finger, the medical report stops short of making a prognosis of the true extent of injury including the degree of disability caused. That uncertainty can only benefit the Prisoner.

18. I also consider as aggravating the fact that the Prisoner used a short iron or metal rod and the assault took place in a market, a busy public place with many people abound either as vendors, buyers or those just walking around.

19. Comparatively, this case is not as serious as Sabuin or Dick Meaea.

SENTENCE

20. Considering all the factors for and against the Prisoner including the law and case precedents, I think, a sentence of fourteen months imprisonment in hard labour to be served at the Bomana gaol is appropriate in the circumstances of this case. The pre-trial detention period of one day shall be deducted from the head sentence leaving a period of thirteen months and twenty seven days (the remaining sentence) to be served. However, in the exercise of my discretion under s.19 of the Code, I will wholly suspend the remaining sentence on the following conditions:-

1. That the Prisoner shall enter into her own recognizance to keep the peace and be of good behaviour during the period of suspension;
   
2. That the Prisoner shall pay to the victim K 400.00 cash as compensation within three months from today;
   
3. That the Prisoner shall not change her residential address at the Nine Mile cemetery grounds in the National Capital District during the period of suspension;
   
4. That the Prisoner refrain from assaulting the victim in any manner whatsoever during the period of suspension;
   
5. That the Prisoner shall not leave the National Capital District without the permission of this Court during the period of suspension.
   

21. In the event that anyone of the conditions is not complied with, the Prisoner will be arrested and sent to gaol at Bomana to serve the remaining sentence which I have suspended. I sentence the Prisoner accordingly and also order that an appropriate warrant be issued forthwith to give effect to this sentence.

22. Bail monies of K200.00 are to be converted and applied as part payment of compensation to the victim which shall be processed forthwith.

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