State v W [2010] PGNC 10; N3889 (11 February 2010)

N3889

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 655 of 2009

THE STATE

-v-

"W"

Wabag: Ellis J
2010: 10, 11 February

CRIMINAL LAW – sentence following plea – grievous bodily harm – offender injured his brother’s wife with bush knife – loss of substantial portion of the right foot - no prior convictions - sentence of imprisonment with hard labour for 3 years – Criminal Code, s319

Cases cited:
State v Ete Lem (CR313 of 209, Wabag, Ellis J, 9 February 2010)
State v Pari (No 2) [2001] PGNC 2; N2033 (10 January 2001)
State v Naiwa [2004] PGNC 58
State v Tu [2008] PGNC 37; N3306 (11 March 2008)
State v Kopol Hiol (CR 538 of 2008, Mendi, Makail AJ, 12 May 2008)

Counsel:
Mr J Waine, for the State
Mr P Kapi, for the Offender

JUDGMENT ON SENTENCE

1. ELLIS, J: Yesterday morning this offender pleaded guilty to a charge of doing grievous bodily harm to his brother’s wife with a bush knife which charge was brought under section 319 of the Criminal Code, an offence for which the maximum penalty is 7 years’ imprisonment.

The evidence

2 The hand-up brief was tendered and became Exhibit A while the medical report became Exhibit B. What appears in those documents is summarised below.

Circumstances of the offence

3 On 25 June 2008 the offender swung his bush knife twice at the victim: the first blow missed the head of the victim; the second struck the victim on the right foot. The statement of the victim suggests that there was a dispute between them over some vegetables.

Circumstances of the offender

4 When interviewed by the police, the offender said there was a dispute over some vegetables and went on to say that the victim called him "weak balls" in public and that she has previously humiliated him many times by saying that he was an AIDS infected person. The offender admitted that he had an affair with a woman and contracted a disease. He said that he was introduced to that woman by the victim which would suggest that he also blames her for his predicament.

5 The Antecedent Report suggests that the offender is a single man who was educated to Grade 9 standard and has no prior convictions.

Circumstances of the victim

6 To only consider the circumstances of the offence and the circumstances of the offender would be to overlook an important consideration: the circumstances of the victim. When the victim was examined at the Wabag General Hospital on the day of the incident, "the wound was so deep that the foot was partially severed with only the skin forming the sole of the foot remaining intact". As the bones in the foot were fractured they had to be fixed with wires. The major artery which supplies blood to the foot was also severed. Owing to the lack of blood supply, gangrene set in and a portion of the victim’s right foot had to be amputated with the result that "Only the 2 small side toes survived". Dr Tim Pyaku, who wrote the medical report, assessed that the victim has lost more than 60% of her right foot. I also note that the victim was in hospital for almost five months: from 25 June to 18 November in 2008. It is clear that the victim has sustained an injury which will reduce her mobility as she is now only able to walk with the aid of a stick and that will be the case for the rest of her life.

Commendation

7 I should not consider other aspects of this case without commending the doctors and nurses at Wabag General Hospital for their work which saved the victim from an above the ankle amputation of her right leg. While it is unfortunate that the loss of circulation was such as to require a partial amputation of the right foot, I am satisfied that was as good a result as could have been achieved in these circumstances even in a hospital overseas. Indeed, the nature of the injury was such that the victim may well have died but for the attention she received at Wabag General Hospital. I suppose one consequence of the number of bush knife injuries which occur in Papua New Guinea is that its medical staff achieve outstanding results under difficult circumstances. It is therefore worth taking a moment to recognise their efforts which would otherwise go unnoticed as all these cases progress through the National Court. A copy of this judgment will be provided to the Wabag General Hospital so the staff at that institution are aware that their efforts do not go unappreciated.

Allocutus

8 When provided with an opportunity to address the court, after being found guilty of this offence, the offender spoke at length. As much of what he said is sufficiently covered elsewhere in this judgment, I shall not quote what he said. It is sufficient to record that the offender said he is only 30 and yet he is going bald and looking older than he is. He attributes those matters to a sickness which he claimed was the reason for his conduct.

9 What the offender initially said was exclusively about his own situation and I was left to wonder whether he had any appreciation or concern for the plight of the victim. However, after I reminded him of the purpose of providing him with an opportunity to address the court, the offender apologised to the victim. He maintained that he would not have done what he did if she had not said what she said.

Submissions

10 On behalf of the offender, Mr Kapi submitted that there is a question as to whether the age of the offender is 28 or 42. He noted that the offender had no prior convictions, had made admissions to the police, had made an apology to the victim and submitted that the offence occurred in circumstances which are sometimes described as de facto or non-legal provocation, a term used in this country to denote conduct which is not a defence but is relevant to the question of what sentence should be imposed. I note that the offender has spent almost 1 year and 3 months in custody and an allowance will be made for that time which has been already served.

11 For the State, Mr Waine submitted that a sentence of imprisonment was appropriate in this case and both Mr Waine and Mr Kapi submitted that a sentence in the vicinity of three years should be imposed in this case.

Case law

12 As I have recently considered a number of National Court decisions involving the same charge in the case of State v Ete Lem (CR313 of 209, Wabag, Ellis J, 9 February 2010) in which I delivered a judgment earlier this week, it is understandable that counsel would make reference to that case and compare it to this case although I do not normally like referring to my own judgments.

13 In The State v Pari (No 2) (2001) PGNC 2; N2033 (10 January 2001) a head sentence of 4 years was imposed but 2 years of that sentence was suspended. I note that case involved an injury to the left arm of the victim but he recovered from it. I also note that the offender in that case was a young offender.

14 In The State v Naiwa [2004] PGNC 58; N2710 (22 June 2004) it was considered inappropriate to order compensation as there was no proposal for compensation by the offender and no independent verification of the means to pay. The charge arose from the use of a bush knife without good reason which rendered the left hand of the victim useless. Although a pre-sentence report was available, it was not considered balanced. Despite the plea of guilty by a first offender, a sentence of 5 years’ imprisonment was imposed.

15 Another decision which involves a disability to the hands is State v Tu [2008] PGNC 37; N3306 (11 March 2008). In that case the victim was the offender’s wife who ran away to have a relationship with another man, leaving her husband with their children. Multiple cuts to the victim’s body were life threatening and left the victim with serious disability in the use of both hands. That was a plea of guilty by a first offender. However, no compensation had been paid and there was no pre-sentence report. A custodial sentence of 4 years was imposed, none of which was suspended.

16 In The State v Kopol Hiol (CR 538 of 2008, Mendi, Makail AJ, 12 May 2008) there was a sentence of 4 years’ imprisonment, none of which was suspended, despite an early plea of guilty. That case also involved a dispute between an husband and a wife and the use of a bush knife. In that case, the wife’s left thumb was severed. The injuries are less severe in this case. However, this case involved trial and not a plea.

17 I note that in some cases involving this offence, part or all of a sentence is not uncommonly suspended in situations involving de facto provocation. I am reluctant to reduce or suspend the sentence in this case because the offender responded to derogatory words by striking the speaker with a bush knife because that response is out of all proportion and I do not want anyone to think that mere verbal insults will reduce the sentence where a man strikes a woman with a bush knife. The statement of the victim does not contain any indication that she used unseemly words to the offender. However, any doubt in relation to that aspect should be resolved in favour of the offender and I therefore accept that such words were directed by the victim towards the offender.

18 I consider a sentence of imprisonment for three years to be appropriate in this case. However, lest that sentence be considered light having regard to the injuries of the victim, it is important for two messages to be issued by the court. The first is a message not uncommonly heard, namely the need for deterrence as warranting a greater sentence. The other important point, less often emphasised, is that people who make admissions shortly after the offence and who enter a plea of guilty can usually expect to receive a lesser sentence. By way of indication, I would have imposed a sentence of imprisonment of 4 or 5 years if this matter has proceeded to trial. Since no compensation has been made to the victim, I do not consider it appropriate to suspend any part of the sentence.

Remarks to the offender on sentence

19 When I was growing up, my mother used to say to me: "sticks and stone may break my bones but names will never hurt me". I wish your mother had given you that message because that might have meant that when you felt humiliated you did not over-react and strike your brother’s wife with a bush knife. I have heard what you said in relation to your health concerns and I will make what I consider to be an appropriate order to address that concern.

20 Your case should send out two messages to the people of Enga Province. First, a bush knife is called a bush knife because it is supposed to be used on bush, not people, and certainly not on women. Secondly, that people who admit what they did and plead guilty can expect to receive a lesser sentence.

Decision

21 Taking into consideration what you have said and what has been said on your behalf by your lawyer, I sentence you to imprisonment for 3 years. Deducting 1 year and 3 months for time already served leaves a period remaining to be served of 1 year and 9 months.

22 Section 36 of the Constitution entitles you to be treated with respect for the dignity of the human person and section 37(1) of the Constitution gives you a right to full protection of the law. Section 57 of the Constitution gives me the power to make orders in order to ensure that those rights are respected. Relying on those provisions, I direct that, prior to your return to Baisu Correctional Facility, you are to be taken to Wabag General Hospital where a blood sample is to be taken then tested for AIDS. I direct that the result of that test be provided to me in a sealed envelope so that the result can be made known to you and to the Commanding Officer at the Baisu Correctional Facility. I make those orders for two reasons: first, since you are entitled to know whether or not you are HIV positive; secondly, since it is important that the senior officer at the prison where you will be held knows your status in that regard. In order to give the results of that test an appropriate level of confidentiality, I will deliver the document recording that result when I next visit Baisu after receiving the result.

23 From an abundance of caution, in view of that issue, I direct that the name of the offender in this case not be published. It is for that same reason that this judgment has been headed The State v "W" so that any future reference to this case will not disclose your name.

Sentenced accordingly.

__________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender