State v Kar [2011] PGNC 230; N4719 (11 February 2011)

N4719

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 557 OF 2010

BETWEEN:

THE STATE

AND:

LUCY KAR
Prisoner

Mt. Hagen: David, J
2010: 15 October
2011: 10 & 11 February

CRIMINAL LAW – sentence – grievous bodily harm – guilty plea - prisoner and victim are co-wives – tip of nose bitten off - fight following altercation between victim and common husband over axe – permanent disfigurement – prevalence of crime – victim to be an object of ridicule – live with shame for life – prisoner not an unsophisticated subsistence villager – prisoner committed crime alone - genuine expression of remorse - first offender - co-operation with police - de facto provocation – compensation paid – effect of sentence on children of tender years – crime in domestic setting - sentence of three years wholly suspended on terms.

Cases cited:

The State v Isaac Wapuri [1994] PNGLR 271
The State v Darius Tulo (2001) N2034
The State v Salle Sorowi, CR. No.628 of 2007, Unreported Judgment of Kandakasi, J delivered on 15 June 2007
The State v Sam Piapin, CR. No.1291 of 2006, Unreported Judgment of David, J delivered on 18 February 2009
The State v Lucy Rusa (2008) N3510
The State v Miriam John (2009) N4128

Counsel:

Mr. J. Waine, for the State
Mr. P. L. Kapi, for the Prisoner

SENTENCE

11 February, 2011

1. DAVID, J: INTRODUCTION. On 15 October 2010, the prisoner pleaded guilty to one count of unlawfully doing grievous bodily harm to one Maria Kar at Nengel village, Mul District, Western Highlands Province on 17 October 2006 contrary to s.319 of the Criminal Code. Having been satisfied that the evidence contained in the depositions supported the charge, I accepted the prisoner's guilty plea and convicted her of the charge.

2. Section 319 of the Code creates the offence and prescribes the penalty. The prisoner could be imprisoned for a term of up to seven years, subject to the exercise of the Court's considerable discretion under s.19 of the Code.

3. To assist me in making a decision on the appropriate sentence for the prisoner, I directed the Probation Service here at the request of the prisoner's counsel to compile and file a Pre-sentence Report by 21 October 2010. The Pre-sentence Report was duly compiled based on information received by the Probation Service from the prisoner and community leaders from the Ukuni One tribe, to which the prisoner's husband is a member. I am grateful to Lilly Songoa, Probation Officer, Mt. Hagen for attending to the compilation and filing of the report. I heard submissions yesterday afternoon and adjourned to this afternoon for sentence. I have read the report and note the details there in particular the recommendation that the prisoner is a suitable candidate for probation supervision hence a non-custodial sentence be imposed.

4. The short facts presented for purposes of arraignment were that on 17 October 2006 at Nengel village, Mul District, Western Highlands Province, the prisoner's husband, Kar Kuipa (the common husband) was involved in a fight with his first wife, Maria Kar. The prisoner is the second wife. For some reason, the prisoner stepped in and attacked the victim from the back. As the victim turned around to see who was attacking her, the prisoner bit her by the nose resulting in the nose being bitten off. The victim was rushed to the Tinsley District Hospital and treated. The victim suffered a permanent disfigurement to her nose. What she did was unlawful.

5. The evidence shows that the fight between the victim and the common husband was over an axe. The axe was in the possession of the common husband whilst staying with the prisoner. He had been residing with the prisoner for about a month before the incident. On the date of the crime between 8:00 and 9:00 o'clock, the victim had gone to ask the common husband to give her the axe to cut some firewood. The prisoner was with the common husband at the time. When the common husband refused, that angered the victim and she tried to pull the axe from him. A tussle ensued between them. The prisoner then joined in the affray.

6. The Medical Report of Dr. Mutan of the Tinsley District Hospital dated 6 February 2007 confirms that the victim was brought to the hospital on 17 October 2006 with the tip of the nose torn off completely and she was bleeding from the wound. Medical personnel there sutured the torn off piece of the nose back, but since circulation was not established, their efforts were in vain. The victim's wound was examined again on review on 9 January 2007 which revealed that it was healing very well, but there was considerable disfigurement of the nose. They suggested that she consult Ear Nose & Throat doctors within the region for assistance. She was counselled to assist her with the "psychological" stigma she was going to be burdened by because of the disfigurement.

7. The dimensions of the injury are not reported so as to assess the true extent and gravity of the injury. This will go to lessening the gravity of the offence in the instant case.

8. The prisoner is now thirty one years old. She is married and has two children of tender years, one is a boy who is about four years old and the other a baby girl who is more than a month old. Notwithstanding that there is a subsisting marriage, she and the common husband are currently living separately and apart. The common husband who is from the Ukuni One tribe is currently residing at Ropnand village, Baiyer District. She is currently residing at Nengel village, Mul District with her parents as an ordinary subsistence villager. Her parents are alive. She has three other siblings, a brother and two sisters. She is the third born. She attained Grade 10 formal education from the Kombolopa High School in 2001. From 2002 to 2003, she did a course at the Commercial Training Centre, Lae. She spent one month on a job experience engagement with Morobe Loans Society as a receptionist. In 2003, she was employed by Pacific Industry at Lae as a sales person. She left her employment after marrying the common husband. She has a Christian background. She is a baptised member of the Lutheran Church. She does not have any prior conviction.

9. On allocutus, she said she was a young girl when she married the common husband. He has not paid bride price. They have a two and one half years old male child from the marriage and she was pregnant again. She confirmed biting the victim's nose off during an altercation with her. The victim also bit her fingers. In 2007, she paid compensation to the victim consisting of K350.00 in cash and three pigs to the value of K1,000.00. She has been living separately from the common husband since 2009 for two reasons. First, it was because the common husband went to live with the victim. Second, it was because the victim reported the crime to the police. She spent six weeks in custody before being admitted to bail. She said sorry to the victim for what she had done to her. Finally, she asked the Court to have mercy on her.

10. In mitigation, it was submitted as follows. First, the prisoner pleaded guilty. Second, the prisoner was a first time offender having no prior conviction. Third, the prisoner paid some form of compensation to the victim to reconcile with her. Fourth, the prisoner expressed remorse. Fifth, there was de facto provocation. Sixth, the crime occurred in a domestic setting.

11. In aggravation, it was submitted as follows. First, the victim was left with a permanently disfigured nose which she has to live with for the rest of her life. Second, the prisoner was not an unsophisticated villager going by her level of education so as not to understand the consequences of her action. Third, there was no evidence that she paid compensation to the victim. Fourth, this serious crime was prevalent.

12. Mr. Kapi for the defence invited me to be guided by The State v Issac Wapuri (1994) PNGLR 271 and The State v Darius Taulo (2001) N2034 when suggesting a wholly suspended sentence of two to three years less six weeks for time spent in custody to be served on a good behaviour bond and if the Court considered that additional compensation should be paid, then bail moneys should be converted for that purpose.

13. In Issac Wapuri, 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 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. On a guilty plea to a charge of grievous bodily harm, the prisoner was sentenced to eighteen months imprisonment in hard labour less five 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 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 in cash and five pigs to the value of about Eight Hundred Kina and such to be paid within one month and in default, two months imprisonment.

14. In Darius Taulo, 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. On a guilty plea to a charge of grievous bodily harm, the prisoner was sentenced to three 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 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.

15. Mr. Waine for the prosecution invited me to be guided by The State v Sam Piapin, CR. No.1291 of 2006, Unreported Judgment of David, J delivered on 18 February 2009 and The State v Salle Sorowi, CR. No.628 of 2007, Unreported Judgment of Kandakasi, J delivered on 15 June 2007 when suggesting that a sentence of over three years that could be suspended on terms was appropriate in the present case.

16. In Sam Piapin, the prisoner and the victim were close neighbours. Early one morning, a dispute arose between them over the land along the boundary they shared. At the time, the prisoner had a spade and swung it at the victim. In order to protect herself, the victim put her arms up, but because the spade was swung with so much force, it hit the victim's left arm in particular the ring finger which got severed. On a guilty plea to a charge of grievous bodily harm, I sentenced the prisoner to three years imprisonment IHL less time spent in custody. Two years of the term imposed was suspended on terms including doing free community work during the period of suspension.

17. In Salle Sorowi, the prisoner pleaded guilty to a charge of doing grievous bodily harm to one of his wives. The victim had a history of being violent towards the prisoner. Her behaviour contributed to him not having a good and stable family life with her. He eventually left her and married his second wife. On the date the offence was committed, the victim saw the prisoner with the second wife and swore at him and saying that he would die. She had previously uttered threats to that effect. When she repeated the threats that time, the prisoner got angry and attacked the victim three times using a bush knife. He cut the victim three times on her left hand and once on her head. She was taken to the hospital and received appropriate treatment. A wholly suspended sentence of three years on terms was imposed.

18. Apart from the cases cited by counsel, I have also considered The State v Lucy Rusa (2008) N3510 and The State v Miriam John (2009) N4128.

19. In Lucy Rusa, the prisoner and the victim were co-wives. On the date the offence was committed, the victim was digging kaukau in her garden with two other women when the prisoner walked past them on her way to the house. An argument developed between the prisoner and the victim and eventually ended up in a fight. As they were wrestling each other, 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 where she was appropriately treated. On a guilty plea to a charge of grievous bodily harm, a custodial sentence of two years imprisonment in hard labour was imposed.

20. In Miriam John, the prisoner and victim were co-wives. On the date the offence was committed, the prisoner met the victim while she was on her way to the antenatal clinic at the Chuave Health Centre. The victim was seven months pregnant at the time. The prisoner approached her and punched her several times. The punches were directed to the victim's face and abdomen. The victim suffered serious internal injuries as a result. She was in agonising pain and was taken to the Chuave Health Centre for treatment. The pain continued and she lost a lot of blood. Subsequently, the victim was referred to the Kundiawa General Hospital where she delivered a premature macerated dead female baby. On one occasion whilst on her way to attend a call-over, she was seriously assaulted by her husband and his brothers for not paying compensation. A medical report confirmed the nature and extent of the injuries she sustained. On a guilty plea to a charge of grievous bodily harm, I considered imposing a sentence of six years, but since jungle justice had been inflicted upon the prisoner, I imposed a sentence of five years, three years of which was suspended on terms.

21. I note that there a number of mitigating factors that operate in favour of the prisoner in the present case. They are; first, her guilty plea; second, she expressed genuine remorse; third, she committed the offence alone; fourth, she has no prior convictions and is therefore treated as a first time offender; fifth, she made admissions in her Record of Interview and in so doing has the benefit of cooperating with the police; sixth, there was de facto provocation; seventh, the prisoner paid some compensation to the victim to reconcile with her; eighth, she has two children of tender years who will be greatly affected by the sentence of the Court; and finally, the crime occurred in a domestic setting.

22. As to the objection by the prosecution not to accept compensation as a factor in mitigation for lack of evidentiary material, I have accepted that compensation in the amount claimed by the prisoner on allocutus was paid by the prisoner to the victim on the strength of the pre-sentence report which is an independent report compiled by the Probation Service through Lilly Songoa, Probation Officer. She reports that she received information from community leaders from the common husband's tribe namely, James Kopun, Paraka Kupal, Rumints Mel and former councilor, Dokta Kiap and current councilor Pintiki Pana who confirmed witnessing the compensation payment.

23. I consider the following factors as aggravating. First, this serious crime is prevalent. Second, the victim has a permanently disfigured nose. Third, she will be made fun of or ridiculed by the community wherever she goes which she will have to endure for the rest of her life because of the deformed nose. Fourth, the prisoner was not an unsophisticated subsistence villager going by her level of education so as not to understand the consequences of her action.

24. In the present case, I note that the mitigating factors outweigh the aggravating factors. I also note from the pre-sentence report that the prisoner is financially incapable of meeting any order to pay additional compensation or a fine.

25. I have not been able to find any comparable sentences involving injuries to the nose. However, the above cases show that the instant case is not as serious as in Isaac Wapuri and Miriam John. The other cases were considered less serious therefore sentences ranging from two to three years were imposed.

26. Applying the principles that the maximum penalty is usually reserved for the worst cases for the particular offence under consideration and that each case must be considered on its own merits and that this case does not fall within the worst category for this offence, I consider that in all the circumstances of this case, a sentence of three years in hard labour is appropriate. From the head sentence, I will deduct six weeks the prisoner has spent in custody leaving two years and forty six weeks (the remaining term) to serve. Incarceration will be at the Baisu Correctional Institution.

27. In the exercise of my discretion under s.19 of the Code, I will suspend the remaining term in its entirety on the following conditions:

1. That the prisoner shall enter into a recognizance without surety to keep the peace and be of good behaviour for the duration of the suspended period commencing today.
   
2. Within the suspended period, the prisoner is not to go within one hundred metres of the victim's place of residence unless invited by her.
   
3. That the prisoner shall pay a fine of K300.00 forthwith. It is ordered that the cash bail of K300.00 be converted and applied towards the payment of the fine.
   

28. A warrant to give effect to this sentence shall issue forthwith.

I order accordingly.

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