N6060

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 315 of 2009

BETWEEN

THE STATE

AND

DOROTHY BUKU

Kimbe: Kawi, J
2011: 10th, 11th May

CRIMINAL LAW AND PRACTICE – Criminal Code – Section 319 –Grievous bodily harm- mitigating factors –Adulterous behavior of the victim and husband of the prisoner amount to strong extenuating circumstances - Presence of very strong extenuating circumstances significantly reduce the gravity of the offence and the punishment to be imposed.

Brief Facts: 

The prisoner was indicted on one count of attempted murder. This was however reduced to the alternative charge of causing grievous bodily harm contrary to section 319. The root cause of the prisoner committing the crime in the way she did was due to the victim's adulterous behavior with the husband of the prisoner. On the day of the commission of the crime, the victim danced in front of the prisoner and poked rude and insulting finger gestures, all depicting sex at the prisoner. Her behavior conveyed a message of her adulterous relationship with the prisoner's husband. In those circumstances: 

Held:

(1)	The adulterous behavior of the victim forced the prisoner into committing a very serious offence. It goes to the root of this crime. It therefore operates as a very strong extenuating circumstance.

(2)	Extenuating circumstances significantly water down or reduce the gravity of the punishment to be imposed. They go to the root of the crime committed.

(3)	The punishment imposed must reflect the sentencing objectives of personal deterrence and rehabilitation of the prisoner. In the circumstances a custodial sentences is imposed. 

Cases Cited

Steven Loke Ume –v- The State [2000] SC 836
 
Counsel:

Mr. A. Kupmain, for the State
Mr. D. Kari, for the Accused

DECISION ON SENTENCE

11th May, 2011

1. KAWI, J: Dorothy Buku was found guilty and convicted after trial of causing grievous bodily harm to one Paula Golpak under section 319 of the Criminal Code. She was initially indicted for one count of attempted murder contrary to section 404 of the Criminal Code. She was however acquitted of attempted murder but convicted of the alternate count of causing grievous bodily harm, after a trial. Section 319 of the Criminal Code is stated in these terms: 

S.319 – Grievous Bodily Harm

2. 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.

1.	THE FACTS

3. The State led evidence to prove that the prisoner used a bush knife to cut and cause grievous bodily harm to one Paula Golpak. She suffered serious knife wounds to her body. In particular she suffered the following injuries:

Two knife wounds, one to her right forearm and one to her left forearm which caused her to lose a lot of blood. The knife bows resulted in the fracture of her left ulna bone. She was given iv fluids and taken to the operating theatre for the repairs of the tendons, muscles and reduction of the fractured bone. The injuries were quite serious and at that time it was estimated that if medical treatment was not given, she could have bled to death. The repair of the tendons meant that the knife attack severed one or more of her tendons.

4. When the allocotus was administered, the prisoner maintained that she attacked the victim as a result of her adulterous behavior with the prisoner's husband. The prisoner told the Court that this was an issue that went to the heart of the problem. She asked for the Court's mercy and leniency when sentencing her. 

5. During her allocotus statement I strained my ears to hear her say sorry, but she did not. It was only at the behest of the Court that she felt being directed to say sorry to the court only. She however refused to say sorry to the victim, Paula Golpak, even when the court told her to do so, steadfastly maintaining that attempts by her and her relatives to pay compensation in a peace ceremony in the village to the victim and her family was always met by blatant refusal on the part of the victim and her family. She therefore refused to say sorry to Pala Golpak. While this may be so, it does not hurt for the prisoner to say sorry to the victim in open Court. This would then demonstrate to the Court that the prisoner is very genuine, sincere and honestly remorseful in his/her utterance of the word sorry. Otherwise the utterance of the word sorry becomes a "lip service sorry." 
Here, I saw and noted from the demeanor of the prisoner that she was not genuinely sorry for her troubles. Her facial and bodily expressions indicated to me that she was displaying an attitude of arrogance. 

6. The Supreme Court said in Allan Peter Utieng –v- The State [2000] SCR 15 of 2000 Unnumbered and Unreported Judgment delivered in Wewak on the 23rd of November 2000, that an expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of the offence and making it right with them. 

7. You tried your very best to make right the wrong you inflicted upon the victim by reconciling with the victim and his relatives in accordance with your local traditional custom. Despite your valiant efforts, the victim simply rejected your efforts to reconcile with her. And I will take this factor into account in computing the penalty here. 
 
8. From the outset, I must remind myself that sentencing is not an exact mathematical science where fixed formulas are applied to find a fixed solution. Rather it is a discretionary process guided by a number of principles to achieve certain objectives of sentencing. The four principle objectives of sentencing are; a) Rehabilitation, b) restitution, c) retribution, and d) deterrence. In my view of these four sentencing objectives the two that will feature prominently in this sentence are the objectives of deterrence and rehabilitation. 

9. The sentencing process and the eventual sentence are all aimed at attaining one or more of the objectives outlined above. One of the principles applied in a sentencing process is that the Court will take into account factors which operate in your favour, commonly referred to as mitigating factors and those that operate against you, known as aggravating factors. Some mitigating factors are strongly mitigating while others are mildly mitigating. The same is true for aggravating factors.

2.	Mitigating factors

10. Strongly operating in your favour is that you are a first offender. This simply means that you have never been in conflict with the law before or that you have never come before a court of law in your life. Leaving this attack aside, you were basically a very good law abiding citizen. Your antecedent report confirm this fact. Although you pleaded not guilty forcing a trial to be conducted in your case, the court notes that you co-operated very well with Police in their investigations. You did in fact admitted unlawfully wounding Paula Golpak. This has saved the Police a lot of time, money and expense which it would have unnecessarily incurred, but for your good co-operation. You made police investigations very easy by making admissions when it was required.

11. Still another factor operating in your favour is that after reading your file and your antecedent reports and the Pre sentence Report, I do not categorize you as a violent person or someone who could be considered as a high risk person to your family and your community. Neither can I classify you as a worst or a serial offender. I would categorize your unlawful wounding of Paula Golpak as a one off incident and not an event that was carefully planned and executed with such ferocity, savagery, and precision that would have left the victim dead. You tried your very best to reconcile with Paula Golpak. Despite this she consistently refused to accept your efforts to reconcile. The Pre Sentence Report compiled by the Probation service also confirm this.

12. Above all I note that you are the eldest in a big family of eleven Children. You are 55 years old and married, With 5 children of your own and you have so many grand children as well. And you spend a lot of time tending to your grand children. Not only that you have taken on the added responsibility of looking after your old father as well as looking after the children of your deceased brother. All this is in addition to looking after your grown up children who are studying at the University of Papua New Guinea. You are single handedly responsible for maintaining them and paying for their school fees. Your only source of income is that you spend your quality time selling goods and food stuff at the market. Whatever little money you make, you save, some for your daily household expenses, while the rest is saved to take care of your children's needs which includes their school fees and related educational needs. With a very irresponsible and lazy husband, who is more a burden and liability to you and your children, I find that you are both a mother and a father to your entire family. 

13. Apart from mitigating factors, I also find the presence of some very strong extenuating factors, which operate in your favour. These extenuating circumstances arise more particularly from the conduct of the victim which in my view amount to de-facto provocation. The conduct of the victim, particularly her rude finger gestures depicting sex and the swaying of her bums also depicting sexual acts and her dancing as she walked past you, all convey a message of her adulterous relationship with your husband. Her adulterous behavior provoked you into doing what you did. Herein lies the very root of the problem. And I will take this into account as a very strong factor operating in your favour. 

14. Extenuating factors are factors which are closely related to the crime itself and they reduce or diminish the serious of the crime. In the case of Steven Loke Ume –v- The State [2000] SC 836, the Supreme Court explained what an extenuating circumstance is in this way:

"As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself- factors which reduce the seriousness of the crime………………….. Extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence, whereas mitigating factors are usually unrelated to the circumstances of the offence…………… Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of an extent of the offenders participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did" 

15. An extenuating factor which is apparent in your case, is the circumstances which provoked you offend in the way you did. 

16. In particular, I take into account what you told the Court in your allocotus statement. You told the court that you would not have offended, had the victim Paula Golpak not danced in front of you and made rude and insulting finger gestures at you. All her actions conveyed a message of her adulterous affair with your husband. You were therefore provoked into doing what you did. I have already found that you did not satisfy the elements of the legal defence of provocation. Failing that I will classify your actions as arising from the de-facto provocative behavior of the victim and your husband. Indeed in my view this is the single biggest extenuating factor operating in your favour.

3.	Aggravating Factors

17. Learned State Prosecutor, Mr. Kupmain submitted that a factor operating against you is that the injuries you inflicted upon Paula Golpak are very serious indeed. He submitted that an indication of the seriousness is measured by looking at the wounds sustained by the victim. In this regard learned counsel stressed the following wounds:

a)	 Two knife wounds, one to her right forearm and one to her left forearm which caused her to lose a lot of blood. 

b)	The knife bows resulted in the fracture of her left ulna bone. She was given iv fluids and taken to the operating theatre for the repairs of the tendons, muscles and reduction of the fractured bone. The injuries were quite serious and at that time it was estimated that if medical treatment was not given, she could have bled to death. 

c)	Massive loss of blood.

The repair of the tendons meant that the knife attack resulted in the severance one or more of her tendons. The seriousness of these wound cannot just be ignored.
 
18. Mr. Kupmain further submitted that the Court should consider that a bush knife is a very lethal weapon and if it is used to strike at a vulnerable part of the body, a victim can die instantly. He further submitted that in West New Britain there is an upsurge of violence and people resort to using knives and weapons to attack and fight with each other. For this very reason, he submitted that a deterrent custodial sentence must be imposed so it can serve as a deterrence to the offender as well as other would be offenders. He therefore submitted that the penalty to be imposed by the court must reflect deterrence. In relation to the penalty he submitted that the maximum penalty prescribed by legislation under section 319 is 7 years imprisonment. He did however concede that it is trite law in this jurisdiction that the maximum sentence is always reserved for the cases categorized as belonging to the worst category of cases or the offenders being classified as worst or serial or high risk offenders. In this case, apart from causing the unlawful wounding, the prisoner Dorothy Buku cannot be classified as a high risk prisoner, nor can she be classified as belonging to the worst category. 
For all these reasons it was submitted that an appropriate sentencing range for the prisoner would be a custodial sentence of 2 to 3 years jail.

19. Learned Counsel for Defence Mr. Kari on the other hand submitted that when all the mitigating factors are weighed against the mitigating factors, the mitigating factors coupled with the extenuating factors tip the scale. He did however conceded that the force employed by his client to perpetrate the bodily injuries was over and above what was necessary. For this reason he submitted that the Court should impose a part custodial and part suspended sentence. He submitted that a head sentence of three years must be imposed. This should then be suspended with strict conditions. 

4.	Sentence

Pre Sentence Report

20. A Pre sentence report for the prisoner was carried out by the Probation Service of the Justice Department.
The report sought the views of the prisoner and her family members. I note that the brother of the Prisoner confirmed that the prisoner together with her family members did make every effort to reconcile with the victim. But each time they make an effort to reconcile, their efforts have always been met by the blatant refusal of the victim to accept any form of reconciliation or compensation from the prisoner. 

21. The report sought the views of the victim as well, although in submissions, Mr. Kupmain for the State made a veiled suggestion that the victim was not consulted. I found that the victim was indeed consulted. In the end the report strongly assessed that the prisoner was a low risk person. On that basis it recommended the prisoner be given a suspended sentence and placed under probation supervision. 

22. Taking into account the submissions by the learned counsel, and the factors operating in favour of the accused and those operating against, I am of the view that a part custodial and part suspended sentence is warranted here. This is to reflect the overall sentencing objectives of deterrence and rehabilitation. As a measure of deterrence I will impose a head sentence of 3 years to be served by the prisoner at the Lakiemata Prison outside Kimbe in hard labor. 

SUSPENSION OF SENTENCE

23. In Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91, the Supreme Court, stated that suspension of Sentences may be appropriate in three (3) broad categories. First where suspension will promote the personal deterrence, or rehabilitation of the offender. Secondly where suspension will promote the repayment or restitution of stolen monies or goods; and thirdly where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. I have already highlighted factors operating in your favour above. Of all these factors I have noted that you are both the father and mother of your household as well as to your siblings. Your children as well as everyone who depend upon you. Your children depend upon you for their schooling and educational needs. All these children and everyone who depend upon you will loose and stand to suffer more hardship if I sentence you to a longer term of imprisonment. However the sentence, I propose, will I hope, promote the personal deterrence and at the same time promote the rehabilitation of the Prisoner. 

24. For these reasons, I will fully suspend 2 years from the three years head sentence which I imposed. The remaining balance of 1 year will be served in this way:

(a)	Seven (7) months will be served in prison in hard labor at the Lakiemata prison outside Kimbe. This 7 months will commence on the 1st of September 2011. The Prisoner shall be released from custody after 7 months incarceration on the 1st of April 2012. 

(b)	Upon release the prisoner shall report to the Headmaster of Waloka Primary school where she shall for the next five months assist in cleaning the school. For this purpose she will spend three hours every Mondays, Wednesdays and Fridays cleaning the classrooms and the school grounds as well as the staff houses. 

(c)	In these five months, a reconciliation ceremony shall take place between the prisoner and the victim Paula Golpak at Porapora Village. In this reconciliation healing, Dorothy Buku shall pay Paula Golpak K700.00 as compensation for inflicting grievous bodily harm upon her. The K700.00 to be paid by Dorothy Buku shall come from the pockets of her lazy husband one Henry Buku. 

(d)	 Paula Golpak is also hereby ordered to pay Dorothy Buku K700.00 as well being compensation ordered under the Adultery and Enticement Act, for her part in enticing and committing adultery with Dorothy Buku's husband. 

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