State v Sinuga [2012] PGNC 389; N5611 (23 November 2012)

N5611

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 234 OF 2012

THE STATE

V

LYDIA SINUGA

Popondetta: Toliken, AJ.
2012: 12th, 23rd November

CRIMINAL LAW – Sentence – Unlawful wounding – Prisoner stabbed victim twice on back with kitchen knife – Plea of guilty – Mitigating factors - First time offender – Injuries not serious or permanent – Co-operated with police – Extenuating factor – Provocation in non-legal sense - Aggravating factors – use of dangerous weapon – No remorse shown – Offence prevalent - No compensation – Appropriate sentence – 12 months – Criminal Code Act Ch. 262, s 322(1)(a).

CRIMINAL LAW – Sentence – Compensation and suspension of sentence – Justice in Melanesian context a three-edged sword – Justice for the State, the prisoner and the victim – Compensation and suspension appropriate in the circumstances – Sentence wholly suspended with conditions.

Cases Cited:

Goli Goli v The State [1979] PNGLR 653
Avia Aihi v The State (No.3)[1982] PNGLR 92.
The State v Aine Petrus (2011) N4257
The State v Rubert Kassman (2004) N2682
The State v Sinowi (2001) N2175
The State v Ping (2001) N2169
The State v Philip Lekis, CR No. 1927 of 2005, (unreported and unnumbered)

Counsel:

D Kuvi, for the State
D Sopane, for the Prisoner

JUDGMENT ON SENTENCE

23rd November, 2012

1. TOLIKEN, AJ: Lydia Sinuga, on the 25th of June 2011, you and your husband had gone into the main Shopping Centre in Popondetta to shop. You were on your way back home when your husband came across the complainant. They exchanged comments without your noticing. A short while later, you came upon them next to the Steamship Hardware chewing betelnut and telling stories.

2. You approached the complainant and an argument ensued. During the argument, you pulled out a kitchen knife and stabbed the complainant twice on her back. A passer-by saw what was happening and stopped you from further assaulting the complainant. She then took both of you to the police station where you were later charged. The State alleged that you didn't have any lawful reason or justification for wounding the complainant.

3. On 12th November 2012, the State presented an indictment against you on the above facts and charging you for unlawfully wounding Leane Pehaki, the complainant. This is an offence under Section 322 (1)(a) of the Criminal Code Act Ch. 262. You pleaded guilty to the charge and the facts alleged against you.

4. After perusing the evidence on the District Court Committal depositions, I was satisfied that the evidence supported your plea. I accordingly confirmed your plea and convicted you.

ANTECEDENTS

5. You were 26 years old when you committed the offence. You would now be 27 years old now. You are originally from Kaug Village, Dagua, East Sepik Province. You, however, now reside with our husband at his Isuga Village, here in Popondetta. You have one child whom you were pregnant with at the time you committed the offence. You were educated up to Grade 5 only. You have no prior criminal convictions.

ALLOCUTUS

6. When asked to address the Court on sentence, you gave a long strong, relating what happened on that day and why you wounded the complainant. You said that the complainant did not die nor was she seriously injured to be admitted to the hospital.

SUBMISSIONS ON SENTENCE

Your Lawyer

7. Your lawyer submitted in your behalf that the following factors mitigate your offence. Therese are:

• You acted out of frustration.
• You pleaded guilty this saving time for the Court.
• You are a first time offender.
• This was an isolated act.
• There were no permanent injuries or disabilities.
• You co-operated with the police.
• You expressed remorse.
  

8. He also submitted that there were a couple of extenuating circumstances involved in your offence. These are:-

• You were provoked in the non-legal sense.
• The victim had no respect for her children and her husband when she flirted with your husband in her children's presence.
  

9. After referring me to some cases where the Court had imposed sentences on cases similar to yours, your lawyer said that taking into account the circumstances of your case, an appropriate sentence for you should be 1 year. He also submitted that you should be ordered to pay K300.00 compensation and that your entire sentence ought to be suspended.

Lawyer for the State
10. The lawyer for the State on the other hand submitted that while the maximum sentence the maximum sentence for this type of offence is 3 years imprisonment, the maximum penalty is always reserved for the worst type offence. (Goli Goli –v- The State [1979] PNGLR 653; Avia Aihi –v- The State (No.3)[1982] PNGLR 92. He, however, readily conceded that yours does not fall in the worst category.

11. However, he submits that there are aggravating factors to your offence.

• You used a dangerous or offensive weapon to attack the victim.
• You inflicted two (2) stab wounds on the victim.
• This type of offence is prevalent.
• You didn't show any remorse and even in your allocutus, you seemed to maintain that you had the right to do what you did.
  

12. Counsel also referred me to other cases which he said should guide the Court in deciding and appropriate sentence for you. He submitted that one (1) year or 12 months would be appropriate. However, for any suspension, counsel said that there should first be a Pre-Sentence Report (PSR).

13. I then directed that a Pre-Sentence Report and a Means Assessment Report (PSR) be prepared before I proceeded to sentencing you. These reports have been filed and are now before the Court.

PRE-SENTENCE (PSR)

14. The PSR reveals some of your antecedents but goes on to state that you are in good health and the only income you earn is from selling garden food at the local market and from occasional sales from oil palm whenever your in-laws allow you to harvest from their oil palm blocks. The report states that you want to live a normal life in the community and look after your young family. You are a good citizen in your community and participate in social and church activities.

15. As regard your attitude to your offence, the report says you are remorseful and are sorry for what you did. You couldn't control your temper that time when you caught your husband flirting with the victim given that you were then 6 months pregnant. Being from another province, you felt insecure and hence acted as you did. You have never been placed on probation before. The report fairly recommends that you are a suitable candidate for probation supervision.

MEANS ASSESSMENT REPORT (MAR)

16. The other report I ordered was the Means Assessment Report. This report assists the Court in determining if you must pay some compensation to the victim and how much it should be. The MAR confirms your financial situation as contained in the PSR. You offered or said that you can afford to pay K250.00 compensation and will need six (6) months to pay. You are also willing to contribute garden food and your relatives are willing to assist you.

17. The victim on the other hand demands K4,000.00 compensation for the injuries she received to her back, hands and shoulders which resulted in heavy loss of blood and required 10 stitches to suture.

THE OFFENCE

18. Section 322 of the Criminal Code Act provides for the offence of unlawful wounding. It states:

"322. Wounding and Similar Acts
.

(1) A person who –

• (a) Unlawfully wounds another person; or
  
• (b) ...
  

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

19. This offence can also be tried a Principal Magistrate of the District Court under Section 420 of the Code.

SENTENCING TREND

20. This is a prevalent offence and has attracted a lot of reported cases in this court. Let's take a brief survey of some of these cases and see how the Courts have treated offenders.

21. In The State –v- Aine Petrus (2011) N4257, the prisoner pleaded guilty to unlawfully wounding the victim - her husband's first wife - after the husband had knocked her to the ground. The prisoner inflicted multiple knife wounds on the victim while she was lying on the ground. Cannings, J. sentenced the prisoner to 2 years imprisonment. He deducted a week for the time spent in custody and suspended 1 year from the sentence.

22. In The State –v- Rubert Kassman (2004) N2682, the prisoner pleaded guilty to unlawfully wounding the victim by inflicting minor injuries to his neck area. The victim did not suffer any residual disabilities though. The prisoner had no prior convictions, had paid compensation and expressed remorse and a Pre-Sentence Report recommended probation. The prisoner was given a 1 year suspended sentence.

23. In The State –v- Sinowi (2001) N2175, the prisoner pleaded guilty to unlawfully wounding his co-wife by hitting and fracturing her left arm with an iron rod. The prisoner was a first time offender, had paid K1,000.00 to the victim and was remorseful. She was given a 6 months suspended sentence.

24. In The State –v- Ping (2001) N2169, the prisoner pleaded guilty to one count of unlawful wounding in circumstances that indicated that he intended to kill the victim by cutting off his head but instead ended up severely cutting him on his shoulder when he moved his head to avoid the blow. Kandakasi, J. imposed the maximum penalty of 3 years and suspended 2 years with conditions.

25. In The State –v- Philip Lekis, CR No. 1927 of 2005, (unreported and unnumbered), Cannings J. sentenced the prisoner, upon her plea, for inflicting a wound in her sister during a domestic dispute to 30 months imprisonment. The wound required 20 stitches. What should then be an appropriate sentence for you?

YOUR CASE

26. At the outset, it must be stated that this kind of offence continues to happen daily in our towns, villages and cities. People of both genders, old and young continue to take the law into their own hands by attacking others with all sorts of weapons for all sorts of reasons. Unfortunately, some people have been maimed permanently while others have not survived attacks by their assailants. It is therefore, necessary for stiff sentences to be imposed in appropriate cases of unlawful wounding.

27. In your case, I note the following the factors on mitigation:

• You pleaded guilty to the charge.
  
• You are a first time offender.
  
• The injuries you inflicted on the victim were not serious and did not result in any permanent disability or effect.
  
• You co-operated with the police.
  

28. I also note one extenuating factor on your favour. You were provoked in the non legal sense when seeing your husband talking with the victim and when she gave conflicting answers to your question of how she was related to your husband.

29. Not being from Oro Province and being six months pregnant at that time, I can understand that you may have felt insecure by what you may have mistakenly believed to be the start of an affair between your husband and the victim. That of course does not justify what you did but may diminish the seriousness of your offence.

30. However, against you, I find the following aggravating factors:

• You used an offensive weapon on your victim.
  
• You inflicted 2 wounds to the victim's back that needed 2 stitches each, a wound to her left shoulder that required 2 stitches, wounds to the palm of her hand and middle finger that required 5 stitches. And of course, the victim lost a lot of blood and felt great pain.
  
• You didn't show remorse as evident from your address to the Court on allocutus.
  
• You have not paid any compensation to the victim.
  
• This is a prevalent offence.
  

31. So with those factors for and against you and the sentencing trend in mind, what should be the starting point in your case?

32. I think that given the prevalence of the offence and the need for deterrent sentences, the starting point should be 18 months which could then be adjusted up or down-wards to reflect your degree of culpability and the circumstances under which you committed the offence.

33. Bearing in mind what I said above about the increasing incidence of this offence in our cities, towns and villages and the circumstances of your case, particularly your early guilty plea, which has saved time and money for the State, I strongly feel that any sentence should not only serve to punish and deter you personally, but must also have some rehabilitative effect on you.

34. I note from your PSR that you have expressed your desire to remain outside and raise your young family. That is a desire that every young parent has and indeed they may be allowed to do where justified. The question that you must ask yourself is this; "Under what environment will my child grow up? Will it be in an environment where its parents quickly resort to violence at the slightest provocation as a means of solving problems?" You will have to understand, as they say, that 'violence begets violence'. From another dimension, behaviours are learned. Children learn from their parents, so a child whose parents are violent will turn out violent himself later on in life.

35. So, if you do indeed want to raise your young family and not go to gaol then you must desist from offering violence on others. If you have a problem solved it in a non-violent way. Take your problem to people who can assist you like the police and the courts. That's what we are here for and are paid for doing.

36. So, in the circumstance, I think that an appropriate sentence should be below the starting point of 18 months. I impose a sentenced of 12 months. You have been on bail throughout so there will no pre-sentence custody deduction. But should any part of your sentence be suspended?

SUSPENSION

37. The Pre-Sentence Report is favourable to you. It says that you are a suitable candidate for probation or community based correction.

38. I feel that your case is indeed one that should be given favourable consideration for probation. This is not being going soft on you because when you are placed on probation, you will effectively be still serving your sentence, not in gaol though, but outside in your own community. And hopefully, you will be rehabilitated too. At the same time, you will make reparations for the injury you inflicted on your victim. This means that you will pay compensation to your victim, Leane Penaki.

39. You offered to pay her K250.00 as compensation but she wants K4,000.00. Now her injuries may have been superficial but it cannot be denied that she not only suffered pain and suffering from injuries and lost blood, she also suffered loss of dignity when you attacked her in public. So, your offer to pay a mere K250.00 is unfair to her. As the victim, she also demands that justice be done to her and not only to you and the State. It has often been said that justice is a two edged sworn that cuts both ways. That is only true when the victim is a mere complainant whose interest in a criminal prosecution disappears as soon as the wheel of criminal justice starts rolling.

40. So, as I see it, criminal justice in the Melanesian context is not a two edged sword but a three-edged one that must cut three ways – justice for the State, for the accused and for the victim. And, that I think is the whole rational behind such legislation like the Criminal Law (Compensation) Act 1991 which empowers the courts to order compensation for victims of crimes so that they can at least feel that justice is being done for them personally too. So, you must be prepared to pay compensation to the extent that honest effort and means by you can allow.

41. The victim wants K4,000.00 but apart from the medical report that was prepared in respect of her injuries on the date of the offence, there is no supplementary report detailing whether she has suffered or is suffering from residual or recurring effects from her injuries. So, in the circumstances, I feel that K1,000.00 compensation would be appropriate.

42. You will of course feel that this amount is beyond your means. However, you must learn to take responsibility for your actions. One way of doing that is by depriving you of your liberty legally. But the other way - the traditional Melanesian way - is for you to pay adequate compensation to your victim.

43. Yes, the MAR shows that you are not a woman of much means but at the same time, with reasonable effort on your part, you are not entirely devoid of any hope of making money. Your in-laws are willing to help. Your husband is reported in the PSR to have expressed his fear for your child if you go to jail. If he has half the sense in him for unwittingly putting you in this situation he will assist you in raising the compensation. Of course, you will be given sufficient time to pay.

ORDERS
44. My formal orders are therefore as follows:

1. You are sentenced to 12 months imprisonment.
   
2. The sentence is wholly suspended and you are placed on
   

12 months probation with the following additional conditions:-

(i) That you shall keep the peace towards Leane Penaki;

(ii) You shall pay K1,000.00 to the said Leane Penaki within 6 months from today, that is to say, on or before the 23rd May 2013.

3. The bail of K200.00 is converted as part payment of your compensation payment to Leane Penaki.
   
4. The Community Based Correction Officer of Oro Province shall file an affidavit at the first sitting of the Court in Popondetta immediately after 23rd May 2013 deposing to whether or not compensation has been paid.
   

Ordered accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the prisoner