State v Mau [2012] PGNC 283; N5081 (13 December 2012)

N5081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.774 OF 2012

THE STATE

V

RADA MAU

Kokopo: Lenalia, J.
2012: 6th, 10th & 13th December

CRIMINAL LAW – Charge – Grievous bodily harm – Guilty plea – Sentence – Criminal Code s.319

CRIMINAL LAW – Particular offence – Grievous bodily harm –
Victim's left index finger tip and finger nail completely beaten off – Appropriate penalty – Suspended sentence considered

CRIMINAL LAW – Guilty plea – First time offender – Prevalence of offence –
Compensation paid – Pre-sentence report filed – Non Custodial sentence appropriate – Sentence of 12 imposed fully suspended with conditions

Cases cited

The State-v-Patrick Kimat (2005) N2947
The State v Rueben Trowen (24.5.02) N2239
The State v Toparan Walangur (2004) Cr.No.1760 of 2003
The State-v- Henry Idab(2002) N2172
The State-v-Peter Mideliu (24.7.08) unreported judgment Cr.No.302 of 2008

Counsel:

Mr. L. Rangan, for the State
G. Kerker, for the Accused

13th December, 2012

1. LENALIA, J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to Tina Uve, an offence under s. 319 of the Criminal Code. The maximum penalty for this offence is seven (7) years imprisonment. The Court has discretion to impose a lesser term of even a suspended sentence.
Brief Facts

2. On Saturday 10th day of March 2012 about 4 pm at Vunamami Farmers Training Centre, Kokopo, the victim Tina Uve on one side was having an argument with their husband Mr. Mau and the prisoner on one side. For the records, the prisoner and Tina Uve are married to one man who is a lecturer at the above institution. They all live at the above institution where the offence took place.

3. After the argument had started, their husband walked across to the victim's kitchen and broke the door down. Having seen this, Tina got up and expressed concern that, her kitchen will be left open unattended to when they are not there. Tina got up, she took a stone and hit the door to the prisoner's kitchen and also broke the door down.

4. Having seen this, the prisoner got up and swung her hand at Tina and a fight developed between the two wives. In the course of that fight, the victim once more threw her hand at the victim. The prisoner caught the victim's left hand and bit her left index finger tip totally amputating the tip and the finger nail.

5. The H.E.O at St. Mary's Hospital at Vunapope, Ms. Joyce Uraboro examined the victim and found that, the left index finger tip and the finger nail were completely amputated. She concluded that the victim sustained such injuries as the result of the assault.

Addresses on Sentence

6. In her allocutus, the prisoner said, she is sorry for the offence she committed against her co-wife and she said sorry to the victim, their husband and to the court and the Almighty God. She asked the court for a lenient penalty as this is her first time to come to this Court.

7. Mr. Kerker of counsel for the prisoner spoke to his written submission. The gist of the defence submission is that, the Court should consider leniency because the prisoner is the first time offender with no prior convictions and that she had shown remorse even before she came to Court by paying compensation to the victim.

8. Before she came to Court, she had paid an amount of K150.00 cash compensation and made a feast to settle them. This according to counsel's submission, though this is not in evidence form, was made to restore peace and harmony between the victim and herself as co-wives of one husband.

9. Mr. Rangan of counsel for the State conceded to the defence address that this case is not a worst type case and an appropriate penalty should be imposed. Counsel however referred to the Pre-Sentence Report saying the Court should also consider the victim's compensation claim for K3, 000.00.

Pre-Sentence and Means Assessment Reports

10. I have read the pre-sentence report and means-assessment report. In the PSR an elder of the Karuru S.D.A Church, Elder Don Urouro was contacted by the author of the reports who said that, he witnessed the feast and compensation paid to the victim. The food staff was worth K190.00 and cash was given to the victim as bel-kol payment.

11. In the pre-sentence report, the victim claims K3, 000.00 compensation. According to both reports, the prisoner has four or five children. She herself supports and up-keep those children and there is allegation by the victim and prisoner that their husband doesn't fully support them and their children. The victim also has four children from the same father.

Application of Law

12. The penalty provided for under s.319 of the Criminal Code is an imprisonment term of not more than 7 years. That Section states:

"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."

13. The court understands from the record of interview the reason why you attacked Tina Uve that afternoon. By your action you took the lawyer into your own hands. The fact that the victim had broken the door to your kitchen, you should have taken the matter to police. The trouble you committed can land you in jail for 7 long years, but by mercy of Section 19 of the Criminal Code, this Court has discretion to sentence you to a lower penalty.

14. On the sentencing trends by Judges of this Court, I quote one or two cases to illustrate the types of penalties that have been given to offenders for similar offences. In The State-v-Patrick Kimat (2005) N2947, a case in Manus, retired Judge Lay, J imposed 12 months imprisonment but suspended the sentence fully on conditions. In that case at Kubalia settlement in Lorengau, Manus Province an argument arose between the prisoner and his in-law who was living with him. The prisoner got a bush knife and cut Pongo Felix (his brother-in-law) on the head causing grievous harm to his body.

15. In The State-v-Toparan Walangur (2004) unreported judgment Cr.No.1760 of 2003 a case in this Province, the same Judge imposed a sentence of four (4) years. Since the prisoner had spent more than a half of the imprisonment term awaiting custody, the balance was suspended.

16. In another case in this Province is that of The State-v-Peter Mideliu (24.7.08) unreported judgment Cr.No.302 of 2008 before this Court was even more serious than the present one. In that case, the prisoner approached the victim from his back and administered three axe cuts on the victim's body. There was one cut on his right hand and two on the left hand shoulder. The doctor's findings reported lacerations on the left and right shoulders and the left elbow was also cut. Other persons in that group also inflicted certain injuries on the victim's body. He was sentenced to 4 years. The sentence was fully suspended with a set of probation orders.

17. Other cases show varying degrees of penalties that have been imposed by different Judges of this Court. The cases of The State-v-Kerry Rubin Trowen (2004) N2239, and The State-v- Henry Idab (2002) N2172 were cases with aggravations and varying penalties were imposed. Let me just briefly refer to the facts of the first case only. In that case the maximum penalty of seven (7) years was imposed. That was a case where the prisoner forced his two wives to strip naked before him and he inflicted certain permanent injuries on their bodies by using a knife. In that case, the presiding Judge, Kandakasi; J considered the facts of that case to be the worst type case which warranted the maximum penalty.

18. In the circumstances of the current case, I am of the view that some of the above cases were more serious than the instant one. On the instant case, I am of the view that, the facts of this case are less serious than most of the cases I have cited above. I conclude, the Court should impose a suspended sentence with conditions.

19. I impose a sentence of 12 months fully suspended on the following conditions:

1. That you shall keep the peace for a period of 12 months.
   
2. You shall pay K500.00 compensation to the victim within 14 days.
   
3. Shall report to the National Court Registry Office in Kokopo and file an affidavit declaring that you have made such payment. The Senior Community Correction Officer of this Province shall assist you file such a document.
   
4. The Community Base Correction Officer shall supervise the process of payment until such is completed.
   
5. Your bail money can now be converted toward part/payment of the compensation order.
   

_______________________________________________________________
The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused.