State v Sam [2012] PGNC 326; N5179 (20 December 2012)

N5179

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 70 OF 2012

THE STATE

V

LINAH SAM

Lae: Toliken, AJ.
2012: 27th July, 20th December

CRIMINAL LAW – Sentence – Causing Grievous bodily Harm – Multiple deep cuts to head, arms, back and thigh – Mitigating factors - Plea of Guilty - First time offender – Non-legal provocation – Offer to pay compensation – Remorse – Criminal Code Act Ch. 262, s 319

CRIMINAL Law – Sentence – Aggravating factors – Vicious and sustained attack –Multiple deep cuts to head, arms, back and thigh – Element of Pre-planning – Attack on victim while breast feeding 6 days old infant – Total disregard for life and safety of infant – Prevalence of offence – Near worst offence -Need for personal deterrence – Sentence of 4 years.

CRIMINAL LAW – Sentence – Suspension of sentence – Appropriate where it will promote reconciliation between the offender and victim – Compensation considered – Sentence wholly suspended with conditions including K1000 compensation – Criminal Code Act h. 262, s 19(6).

Cases Cited

The Public Prosecutor –v– Bruce William Tardrew (1986) PNGLR 91
Goli Golu v. The State [1988] PNGLR 193
The State –v– Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) 20 April 2006
Saperus Yalibakut v The State (2006) SC890 (27 April 2006
The State v. Waiguma (2007) N3188
Thress Kumbamong v The State (2008) SC 1017
The State –v– Mann (2009) N4028 (23 April 2009)
The State –v– Robert (2009) N3629 (19 May 2009)
The State –v– Fidelis Kiatni (2011) N4331 (20 June 2011)

Counsel

C. Sopa and L. Kleinig, for the State
E. Wurr, for the Prisoner

JUDGMENT ON SENTENCE

20th December, 2012

1. TOLIKEN AJ: Linah Sam, on 24th July 2012, you pleaded guilty to an indictment charging that on the 08th day of 2011 at Malahang, Back Road, Lae in Papua New Guinea you did grievous bodily harm to Slendy Sam thereby contravening section 319 of the Criminal Code Act Ch. 262.
   
2. The brief facts upon which I am going to sentence you are as follows:
   

On 08th of August 2011 you had travelled several kilometres to Mrs. Slendy Sam's (victim) block along Malahang Road, Lae from Awagasi Block, armed with a long bush knife.

On arrival you saw Mrs. Slendy Sam sitting in front of her house breast feeding her 6 days old infant. Without any warning of any sort you repeatedly struck her with the bush knife on different parts of her body.

You inflicted multiple deep wounds or cuts to her head, right and left arms upper back and left thigh. After attacking her you fled back to your place of residence. The victim was immediately taken to the Angau General Hospital by neighbours where she was treated for her injuries.

3. I entered a provisional plea of guilty. After perusing the District Court committal depositions I was satisfied that the evidence supported your plea, confirmed it and convicted you.
   

ALLOCUTUS

4. In your address to the Court before sentence you apologized for taking the law into your own hands. You said that the victim is your co-wife. You said that she had been provoking you over a period of 4 years by making provocative statements that you sell yourself to feed your children and that your children were bastards or illegitimate.
   
5. You said that your husband does not support you and your children. You are able to support them as well pay your rent yourself from your meagre wages. You are worried that if you were to be sent to prison there will no one to look after your children. Hence, you asked for probation.
   
6. Since you asked for probation the Court ordered for a Pre-Sentence Report.
   

ANTECEDENTS

7. You are originally from Torembi village, Ambunti, East Sepik Province but are now residing at Agawasi Block, here in Lae. You were at the time of the offence 37 years old. That would make you just over 38 years now. You are married to the same man as the victim and you have 3 children aged 10, 7 and 3 years. You were educated up to Grade 7 only. You are employed by Frabelle Fish Cannery.
   
8. You have no prior convictions.
   

SUBMISSIONS

9. Your lawyer Ms. Wurr submitted that there are mitigating factors to your offence. You entered an early guilty plea, you admitted your offence very early and co-operated with the police and that you are a first time offender. She also said that you were provoked in the non-legal sense.
   
10. She, however, conceded that there are aggravating factors against you. You used a bush knife, a dangerous knife, on the victim, inflicting her with several cuts to various parts of her body and that the offence is prevalent.
    
11. She further submitted that the Pre-Sentence Report is favourable to you. The victim was interviewed and expressed her desire to be compensated and that your husband is willing to assist you. He is living with the victim while you are living with your children in rented accommodation.
    
12. Ms. Wurr asked the Court to consider a sentence of between 3 – 4 years. She said this should then be fully suspended with strict conditions as according to her imprisonment will adversely affect your children who are already without a father as it were.
    
13. Ms. Sopa for the State on the other hand, submitted that the aggravating factors of your case are that you used an offensive weapon, inflicted deep lacerations on the victim and there was some pre-planning on your part in that you armed yourself in your home at Agawasi Market and travelled all the way to Malahang Road to attack the victim. Further more you also put the life of the victim's infant whom she was breast feeding when you attacked her.
    

14. Ms. Sopa referred the Court to the case of The State v. Waiguma (2007) N3188 which she said has similar factual circumstances to your case. There Cannings J. formulated certain considerations to arrive at head sentence. He fixed a starting point of 3 ½ years and imposed a head sentence of 4 years none of which was suspended. Ms. Sopa asked the Court to impose a similar sentence against you.

THE LAW

16. The offence of causing grievous bodily harm is provided by Section 319 of the Code in the following terms:

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.

17. "Grievous bodily harm'' is defined by Section 1 of the Code as ".... any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or likely to cause permanent injury to health."

18. But while the maximum penalty is seven (7) years imprisonment the maximum is reserved for the worst of offences. Whether a case will attract the maximum penalty or otherwise will depend very much the circumstances of each particular case (Goli Golu v. The State [1988] PNGLR 193).

19. Section 19 of the Code also gives the sentencing judge or court a wide discretion to impose a sentence lesser than the maximum or impose some other form of punishment other than imprisonment or to wholly or partially suspend a sentence. So what has been the sentencing trend for this offence?

SENTENCING TREND

20. Let me now consider a few cases to see how this court had been treating offenders for this offence.

21. In The State –v– Fidelis Kiatni (2011) N4331 (20 June 2011) the offender pleaded guilty to one count of GBH. He had completely chopped off the accused right hand after intervening in an argument and scuffle between the victim and his wife (the offender's sister). The offender was youthful, plead guilty, a firs time offender and had expressed remorse.

22. Against him however, was the fact that victim suffered permanent injury (100% loss of right hand) and the use of a dangerous weapon. Ipang AJ. sentenced the offender to 4 years imprisonment, 2 years of which were suspended and offender was placed on probation with an additional condition, amongst others, to pay K6000 compensation.

23. In The State –v– Mann (2009) N4028 (23 April 2009) the offender pleaded guilty to one count of grievous bodily harm. He attacked the victim by slashing him twice on his right shoulder, inflicting a deep and extensive wound from which the victim lost a lot of blood. The medical report stated the victim "is expected to make a steady recovery, but the offender be held responsible for near murder."

24. The mitigating factors were that he was a man of prior good character, pleaded guilty to the charge, was a first time offender, co-operated with the police and expressed genuine remorse. Furthermore there was provocation in the non-legal sense and there was no pre-planning.

25. Against these were, however, the following aggravating factors. The attack was vicious and repeated, carried out on an unsuspected victim, the offender exhibited strong criminal behaviour and wound inflicted was life threatening. The Chief Justice, Injia CJ. imposed a sentence of 5 years and did not think there were any special circumstances warranting a suspension.

26. In The State –v– Robert (2009) N3629 (19 May 2009) the offender was sentenced to 3 years and 6 months for cutting his brother with a bush knife on his face. The mitigating factors considered were guilty plea, first offence, some remorse, dysfunctional family, surrender to police and early admissions. The aggravating factors, however, were a serious head injury, use of bush knife, taking law into own hands, no compensation and no reconciliation or forgiveness.

27. In The State v Ludwina Waiguna (supra), the offender, a middle-aged woman stabbed another woman with a knife, after a history of bad feelings between them. The offender claimed that the victim had been suspecting her of having an affair with her husband and had been saying bad things about her.

28. Canning J. sentenced her to 4 years imprisonment. The mitigating factors there were; single blow; only one attacker; co-operated with police; pleaded guilty; remorse; ongoing dispute. Aggravating factors were: offender solely responsible; dangerous weapon used; no accident; unprovoked attack; the victim was able-bodied; vicious assault; did not give herself up; no compensation or reconciliation; not a first offender; not a youthful offender.

29. In The State –v– Bob Ananias CR 1413 of 2003, CR 1414 of 2003 (unreported and un-numbered) 20 April 2006, the offender pleaded guilty to two counts of grievous bodily harm. He believed two people were responsible for his mother's illness through sorcery. He held his victims captive and assaulted them. He slashed one of the victims with a bush knife on the leg and cut off one of his fingers. The other victim was slashed on the stomach and suffered permanent injuries. The offender was sentenced to 1 year and 3 years for these offences respectively. So turning to your case, what are the peculiar circumstances of your case?

YOUR OFFENCE

30. Let me first consider your mitigating factors. I accept that you are a first time offender, you pleaded guilty to the offence thus saving time and money for the State and you co-operated with the police from the beginning. A significant mitigating factor that I find in your favour is that you were provoked in the non-legal sense. Without evidence to the contrary, I accept your word that the victim, who happens to be your younger sister, had been taunting you with provocative words to the effect that you will have to sell (prostitute) yourself to feed your children since your common husband was now living with her. I also accept that this had been going for about 4 years. (Saperus Yalibakut v The State (2006) SC890 (27 April 2006)

31. However, I hold the following aggravating factors against you; you used an offensive weapon. There is an element of pre-planning in that you armed yourself at your home at Agawasi Block and travelled all the way to Malahang Road to attack the victim. Your attack was vicious and sustained. You did not cut her once only, but several times on various parts of body including her head, arms, back and thigh. The medical report in the committal file reveals that you inflicted "multiple deep lacerations to the top and both sides of the head ... to the right and left arm, upper back and left thigh."

32. Furthermore the victim was breast feeding her 6 days old infant when you attacked her. You had absolutely no regard for the life and safety of the infant and you subjected it to a very grave risk indeed. I find these factors as significantly aggravating your offence. Finally this offence has become very prevalent. So what should be an appropriate sentence for you?

APPROPRIATE SENTENCE

33. At this point I must say that your case, when viewed objectively, does not fall within the worst category but I must say that it is frighteningly close. On a scale of 1 -10, I would place it above the mid-point of 5 to about 6 or 7.

34. The maximum penalty for this offence as we have seen is 7 years imprisonment. I will fix a starting point of 4 years. In deciding what the head sentence should then be, I acknowledge your factors in mitigation. I particularly accept that you were provoked in the non-legal sense and that those taunts from your sister over a period of 4 years would have affected you so much that you probably could not bear it anymore. Those mitigating factors are, however, reduced significantly when weighed against the aggravating factors.

35. You said that you are worried about what will happen to your children if you were to be imprisoned. I take into account the adverse effect any period of incarceration will have on your children for they will undoubtedly suffer out of no fault of their own. You must, however, realize that their suffering will be the direct result of your wrong-doing.

36. Now I must impose a sentence that will not only punish and deter you personally, but also deter others well. Offences like this and kindred offences of unlawful wounding and causing bodily harm have become very prevalent with people of both genders resorting readily to using offensive weapons to inflict injury on their victims. Some people have been lucky to survive these attacks but not a few have unfortunately died at the hands of their assailants.

37. I find the circumstances of your case to be similar to those in The State v Ludwina Waiguna (supra). However, the facts of your case can be distinguished from Waiguna. While both of you pleaded guilty and attacked your victims alone, in your case you co-operated with the police, showed some remorse, a first time offender and you were provoked in the non-legal sense by your sister. You are willing to compensate the victim though I wonder why you have not done so since you have on the most part been out on bail.

38. On the other hand you inflicted multiple wounds to the victim, cutting her on the head, right and left arms, upper back and left thigh. Your attack was vicious and you had total disregard for the life and safety of the victim's 6 days old infant when you repeatedly struck the victim while she was holding the infant. Furthermore you obviously had pre-planned the attack as I have already found.

39. But what must be said here too is that women who live in polygamous marriages or get into extra-marital affairs with married man invite trouble onto themselves if they provoke or taunt the other woman as was in this case. This is not to say that the court is condoning the type of reactions that often follow but it is a fair warning to women – and men – who feel inclined to behave in this manner.

40. So taking into account all the circumstances of your case I feel that a head sentence of 4 years would also be appropriate. I therefore impose a sentence you to 4 years imprisonment. Should any of this be suspended?

SUSPENSION

41. There is no question that the Court has the power to suspend sentence under Section 19 (6) of the Code. The Supreme Court in The Public Prosecutor –v– Bruce William Tardrew (1986) PNGLR 91, laid down three broad categories under which a sentence may be suspended. These are (1) where suspension will promote the personal deterrence, reformation or rehabilitation of the offender (2) where suspension will promote the repayment or restitution of stolen money or goods and (3) where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

42. I have expressed elsewhere that if suspension will promote reconciliation between the victim and the offender (and their respective lines) then a sentence may be suspended. This is important and is in tandem with our Melanesian culture where disputes are resolved with the intention of not only putting an end to the dispute but also of restoring damaged relationships between the parties.

43. Now yours is one of those now very common cases that arise in domestic settings, more specifically in polygamous or multi-partner relationships. In the centre of these relationships is man who has decided either to take a second wife or a lover/mistress. This often results in these women fighting and injuring each other (some even killing others) while the man stands by and watches with an inflated ego, caring only for his self imposed air of self-importance. When women fight and even kill each other the man gets away scotch free because the law currently does not hold him criminally responsible for the consequences of his philandering and infidelity.

44. So the question is; should women who find themselves in conflict with the law in such circumstances be put away from society for long periods of time? Are they dangers to society in general that they must be incarcerated?

45. As the Supreme Court noted in Thress Kumbamong v The State (2008) SC 1017, an appeal against conviction and sentence on a charge of manslaughter, women who kill under these circumstances need to be corrected outside instead of being sent into our prisons. And I think that this statement applies with more force in non-homicide offences like causing grievous bodily and unlawful wounding.

46. I feel therefore that this is a case that calls for the exercise of my discretion under Section 19 (6) of the Code. A suspension would definitely promote the restoration of your relationship with your sister and family at large. It will also promote personal deterrence and in the process also hopefully reform or rehabilitate you.

47. Because the victim is your own sister, and because sooner or later you will have to reconcile with her and your family I am of the opinion that a wholly suspended sentence would be most appropriate in the circumstances.

48. Reconciliation in our traditional cultures is never complete without compensation so I will order compensation as a condition of the suspension. Given the fact the victim contributed to her injury by factually provoking you I feel that K1000 compensation will be sufficient. You will also have keep the peace towards her and be of good behaviour generally for the period of your suspended sentence.

49. My orders are therefore as follows:

(a) Linah Sam you are sentenced to 4 years imprisonment with light labour.

(b) The sentence of 4 years is, however, wholly suspended on the condition that you will enter into your own recognizance, without surety, to be of good behaviour for the whole period of your suspended sentence, that is to say, 4 years with the following conditions:

(i) You shall keep the peace towards Slendy Sam.

(ii) You shall, within four (4) months, pay K1000 compensation to Slendy Sam.

(c) The payment of compensation shall be witnessed by the Senior Community Correction Officer of Morobe Province, who shall immediately file an affidavit before the National Court in Lae after the expiration of four (4) months, that is to say, after the 20th of April 2013, deposing to whether compensation has been paid.

(d) In the event that you breach your recognizance and any of its conditions the recognizance shall be forfeited and you will be arrested to serve the full term of the suspended sentence.

(e) Your bail of K400.00 shall be refunded in full.

(f) That the cash sureties of K200 each paid by your approved guarantors Michael Kamai and Morris Kekewa shall also be refunded in full.

Orders accordingly
_____________________________________________________

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