State v Carol [2009] PGNC 143; N3762 (23 September 2009)

N3762

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.21 OF 2009

THE STATE

V

DAVID CAROL

Kokopo: Lenalia, J
2009: 10th, 21st & 23rd September

CRIMINAL LAW – Grievous bodily harm – Guilty plea – Sentence – Matters for consideration – Criminal Code s.319, Ch. No. 262

CRIMINAL LAW – Grievous bodily harm – Not worse type case – Suspended sentence appropriate – Sentence of 12 months appropriate but fully suspended with order for 2 years good behaviour bond.

Cases cited

Goli Golu v The State [1979] PNGLR 653
Ure Hane v. The State [1984] PNGLR 105
The State v. Albert Monja [1987] PNGLR 447
John Elipa Kalabus v The State [1988] PNGLR 193
The State v. Isaac Wapuri [1994] PNGLR 271
The State v. Darius Taulo (15.12.00) N2034
The State v To Paran Walagur Cr.No.1760 of 2003
The State v Kerry Rubin (2004) N2339
The State v Ambe Tu (11.3.08) N3306

Counsel

Ms. S. Luben, for the State
Ms. S. Maliaki, for the Accused

23rd September, 2009

1. LENALIA, J: The accused pleaded guilty to one count of unlawfully causing grievous bodily harm to Augustina Carol on 20th August 2008. This is an offence against s.319 of the Criminal Code.

2. The above section provides:

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."

Agreed Facts

3. For purposes of sentence let the court give a brief account of the agreed facts of what occurred on the above date. The prisoner returned home from work between 6 pm and 7 pm in the evening. His wife was sitting inside their family home at Kenabot holding their one year five months old daughter.

4. He walked into the house, and straight to where his wife was sitting and asked about Moimoi’s mobile. He inquired why his miscalls had not been answered. The victim replied by saying that, because she had been very busy throughout that day, she could not attend to the mobile.

5. The prisoner got the mobile and threw it at the victim’s head. He took their little daughter away from her and gave her to the elder sister. He came to where the victim was sitting and folded his right fist and punched her hard on her mouth.

6. The victim was diagnosed with the following conditions:

- could not open her mouth,

- there was slight bleeding on the upper lip,

- four (4) front upper teeth mobile,

- soft tissue injuries,

- ‘mobile teeth due to alveolar’ bone fracture, and

- alveolar bone supporting interior was fracture.

Address on allocutus

7. In his last say, the prisoner said he is sorry for what he did to his wife. He said sorry to his wife and children. He said he wants to pay some compensation to his wife for the injuries she received.

8. The defence counsel addressed the court on mitigation together with the pre-sentence report on 21st of this month. Counsel asked the court to consider the prisoner’s guilty plea and consider the fact that, this was a family related matter. For the State, Ms. Luben replied by saying the offence is serious and the court should consider the prevalence of this offence.

Pre-sentence report

9. I read the above report and noted that, the victim in this case was contacted for her comments. Her view is that, the prisoner should be made to realise that what he did to her is against the law. She gives an account of their marriage life which she said had been through 12 years turbulence. She however asks the Court to give the prisoner a chance in life. She also says, since this incident, she has seen great change in the prisoner’s life. She wants compensation to be paid to her.

10. The victim’s sister gives similar comments about the victim and the prisoner’s marriage life. She raises an important issue about the emotional trauma that the prisoner’s children have been through. She concludes that if the victim and prisoner attend church services would assist in the up-bringing of their children and their marriage life would be strengthened and restored.

What should be the appropriate penalty?

11. You committed a serious offence against your own wife. You heard at the introduction of this discussion the court mentioned the fact that where an offender commits an offence of grievous bodily harm may be jailed to the maximum term of 7 years depending on how serious the aggravating circumstances are and depending on the peculiar facts of each case. (See s.319 of the Criminal Code).

12. It was submitted for the prisoner that, his guilty plea should significantly reduce the sentence. It was said in The State v. Albert Monja [1987] PNGLR 447 that where a guilty plea has been entered, a discount can be given on sentence. I accept the fact that the prisoner committed this very serious offence against his wife. As to how much of a proposed sentence should be reduced on account of a guilty plea is within a sentencer's discretion under s.19 of the Criminal Code. On the exercise of such discretion, there may well be difference of opinions because, it is not a matter of mathematics so as to consistently arrive at a set figure.

13. What ought to be an appropriate sentence is an issue that a sentencer has to decide after having weighed all the relevant factors of the case. A guilty plea does feature prominently in favor of an offender. Then of course, the nature of injuries sustained and the circumstances in which the offence was committed are relevant and important factors for consideration as well.

14. The principle of sentencing is that the maximum penalty should be reserved for the worse type cases encountered in practice: Goli Golu v The State [1979] PNGLR 653, see also Ure Hane v The State [1984] PNGLR 105.

15. The case of John Elipa Kalabus v The State [1988] PNGLR 193 establishes that, where a case falls within the worst type category does not mean the maximum penalty should be automatically imposed. It is a question of fact to be decided whether a case falls within such category or not.

16. Other equally important considerations include factors such as the prevalence of the offence and the kind offender is. Then the court has to consider the purposes of sentencing such as deterrence and rehabilitation or restitution if any.

17. In The State v. Isaac Wapuri [1994] PNGLR 271, the defendant caused unlawful grievous bodily harm to his sister in law. The offence was committed following the victim’s refusal to have sexual intercourse with the prisoner. He hit the victim across the face with a motor vehicle handbrake cable. It resulted in one of the victim's eyes being injured and rendered a 90% loss of function. He was sentenced to 18 months in hard labour with 5 months deducted on account of the time spend in custody. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and K800 equivalent in pigs.

18. In The State v. Darius Taulo (15.12.00) N2034, Kandakasi, J imposed a wholly suspended 3 year sentence on strict terms as an alternative form of punishment outside the prison system. It was a guilty plea and genuine remorse had been expressed by the husband to his wife who was the victim. Compensation had been paid for by the prisoner himself, and he was prepared to undergo his wife’s (the victim’s) traditional form of compensation and to restore the broken relationship and a willingness to truly change his ways under supervision. I note from the trial judge comments that the persuasion there was the fact that the victim preferred compensation.

19. Further, a pre-sentence report supported such a sentence. The prisoner in that case was an adult. The court noted there that the offender in that case was not a danger to the society and that the society had spoken through the pre-sentence report to assist the offender rehabilitate.

20. Over the very recent past, perhaps the worse type family or husband and wife related grievous bodily harm case was that of The State v. Rueben Trowen (2004) N2339. That was the case where the prisoner forced his two wives who were victims of that case, 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.

21. They had to run out of the house naked for help. The presiding Judge, Kandakasi, J noted that if they did not run away to seek assistance from third parties, they could have died. He imposed the maximum cumulative sentences of 7 years each for the harm he had occasioned to the victims.

22. In another husband/wife related offence of causing grievous bodily harm that was in The State v Ambe Tu (11.3.08) N3306 a case in Tabubil where the victim sustained very serious disability injuries to her both hands. The prisoner in that case took a bush knife that was there and cut his wife repeatedly on her back and neck areas and her hands, causing multiple cuts and wounds with two large and deeper wounds on her shoulder area.

23.. He cut both of her hands resulting in complete amputation of her left thumb and her right inner wrist area separating the tendons, nerves and the ulna artery. The wound measured 6 cm x 1.5cm wide. The prisoner in that case was sentenced to 4 years imprisonment.

24. In the present case, I wish to say that wife beating is an offence in our country. This has been brought about because of husbands beating up wives as if they are sexual objects and men can do anything with them.

25. Even after the enactment of the laws against wife beating many men are continuing to beat up their wives. Some of the beatings are ending up in unnecessary deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop.

26. Yet some men continue to beat their wives for small problems that could easily be solved. These men fail to appreciate the fact that their wives are human beings like them and have the right to live and to be treated with human dignity and respect.

27. They do not appreciate the fact that women are weaker than men and as such they need to be treated with care and respect. Men need to show the women or their wives that they truly love them.

28. In the present case, I have considered all addresses by the prisoner and the lawyers. In the case before me, I consider that an appropriate penalty should be a non-custodial sentence with very strict terms as a form of alternative to time in prison should be imposed because of the prisoner's guilty plea, his prior clean record with police, his expression of genuine remorse and he is prepared to re-offend.

29. If the court sentences the prisoner to prison, his innocent children will suffer if he is imprisoned and the prisoner is not a threat or danger to the community. I am sure if he is given a non custodial order, the community will play a part in seeing the prisoner rehabilitate and restrain from beating his wife.

30. Having expressed my concern on this offence particularly in cases involving husbands and wives, I consider a sentence of 12 months appropriate in this case but should be fully suspended.

31. The court imposes the sentence of twelve (12) months imprisonment. Such sentence is wholly suspended with the following conditions:

1. You enter into a recognizance to keep the peace for 2 years.

2. You shall pay compensation to your wife (victim) in the 100 fathoms of shell money the equivalent of K500.00.

3. After the compensation has been paid, you shall produce to the Provincial Community Correction officer receipt of that payment within 7 days from today.

__________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused