N9041

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 398 OF 2013

THE STATE

V
GIDEON HIRIMA

Popondetta:  Toliken, AJ
2013:  05th, 27th September

CRIMINAL LAW – Sentence – Grievous bodily harm – Prisoner cuts victim (his wife) on the head fracturing her skull and cuts off her left hand at the wrist with bush knife – Injuries life threatening – Serious disability - Victim made insulting and sexually suggestive statement at prisoner – Non-legal provocation – Guilty plea – First time offender – Some compensation paid – Willingness to reconcile – Offence prevalent – Domestic setting – Should not be regarded as special mitigating factor – Sentence of 4 years – Favourable Pre-Sentence Report – Partial suspension with conditions including payment of compensation - Criminal Code Act Ch. 262, s 319. 

Cases Cited

R v Piane [1975] PNGLR 52 
Goli Golu v The State [1979] PNGLR 653
Avia Aihi (No.3) v The State [1982] PNGLR 92
Hen Kuru v Was Kombra (1981) N292 (L)) 
The State v Henry Idab (2001) N2172 
The State v Steven Moni & Ors (2006) CR 293 – 297 of 2004 
The State v Eddie John Naopa (2003) N2411
The State v Ambe Tu (2008) N3306 
The State v Bob Ananias CR No. 1413 of 2003, CR No. 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006 
The State v Fidelis Kiatni (2011) N4331 
The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe)
The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013) 

Counsel

J.Waine, for the State
J. Mesa, for the prisoner

	SENTENCE

27th September, 2013

1.	TOLIKEN, AJ:	    Gideon Hirima, on the 5th of September 2013, the State indicted you for one count of unlawfully causing grievous bodily harm an offence against Section 319 of the Criminal Code Act, Chapter 262.  The indictment charged that: 

GIDEON HIRIMA of TIMBEKI village, Oro, Popondetta, Stands charged that on the 31st day of July 2012, at Timbeki, in Papua New Guinea, he unlawfully did grievous bodily harm to one ELMA ONDIRE. (Sic.)

2.	The following facts were put to you in support of the charge: 

On the 31st day of July 2012, at about 2 pm, the victim and her baby were at Tabmore River at Timbeki village doing laundry.  You came by and took your child and stood watch as your wife (the victim) was doing laundry. She finished the laundry and came out of the river and chatting with you and chewing betelnut. In the cause of your conversation, you must have got upset about something that your wife said.  You took out your knife and swung it at her head and arm.  You struck her 3 times, twice on her head and once on her left arm which could have been fatal.  The strike to the head fractured your wife’s skull while that to the left hand cut off the hand from the wrist. She was rushed to the hospital and survived but is now left permanently without her hand. 

PLEA

3.	You pleaded guilty to the charge.  I entered a provisional plea of guilty and confirm it after I had perused committal court depositions.

ANTECEDENTS

4. 	You are 25 years old and come from Timbeki village, Northern Province. You belong to the Anglican Church and are married to the victim. You have 4 children aged 10, 7, 5 and 3 years. You are a villager and have no prior convictions.	

ALLOCUTUS

5.	In your address to the Court you made the following statement:

“I say sorry to the court.  I did this because my wife said something bad to me.  I say sorry to my wife, to her family and our community.  I say sorry to my church leaders and my own family.  I am a first-time offender. I wouldn’t be in court today if my wife had not done what she did.  The public heard about what I had done, and I am sorry about that. I am the only one in my family.  My parents are deceased. I have 4 children, all of whom are in school. I have 4 hectares of betel nut and a hectare of cocoa treeand a hectare of oil palm. I ask for mercy.  I ask the court to have mercy on me and consider letting me out to go and live with my wife and children and compensate my wife.

SUBMISSIONS

Defence

6.	Your lawyer Mr. Mesa concedes that there are aggravating factors in your case in that the victim had lost her left arm and that you used a dangerous weapon – a bush knife to attack her.

7.	Counsel, however, pointed out several mitigating factors which include your plea of guilty, co-operation with the police and that you are a first-time offender. He also said you were provoked in the non-legal sense immediately before the offence when your wife said very insulting words suggestive of what you might do to her mother, your mother-in-law. He also said that your wife has a history of deserting you and the children and even ran off with another man. He said you showed genuine remorse and had paid “bel kol” of K1,000.00. You have even tried to reconcile with your wife.

8.	Counsel also said that there is a special mitigating factor in your case - the offence arose in a family setting. He said that the circumstances of your case calls for a sentence of 4 years and relied on the The State v Ambe Tu (2008) N3306 which he said had similar facts as yours and attracted a sentence of 4 years. He also said that you are a good candidate for probation or partial suspension of any sentence.

State

9.	Mr. Waine submitted on behalf of the State that given injuries sustained by victim, you should pay compensation of between K3000 – K4000 and that it should be paid within specific time. He also agreed with range of sentence suggested by your lawyer.

12.	Counsel, however, countered suggestions by your lawyer that the domestic setting of your case should be treated as a special mitigating factor.  He said that there should not be any such differentiation and the court should avoid categorising such cases as such. 

 13.	Your lawyer responded that in a domestic setting a special relationship exists where things sometimes get out of control.  Courts have hence paid attention to that fact and differentiated these types of cases from others such as those of strangers fighting on the street.

Pre-Sentence Report (PSR)

14. 	Some salient points from your PSR are:

•	that you have a reputation in a community as a peace-loving citizen and member of local Anglican parish where you are a leader in the youth ministry.
•	The victim (your wife) wants you to pay compensation to her and her family for peace to prevail. She wants you to feel responsible for her loss of her hand by helping her with her daily chores and looking after the children.
•	You are sorry for what you did and quickly paid bel kol” of K1,000.00 to your in-laws the very next day, 01/08/12, witnessed by the Ward Councillor. You quickly came to your senses and have realised the importance of having both hands intact, hence, you wish to reconcile as soon as with your wife.
•	You are assessed not to be of any danger to yourself or others and community as a whole and hence suitable for probation.

15.	Those consulted for the report were the Ward 5 Councillor of Higaturu LLG, Mr Paul Willie, Village Chief/Church Leader, Mr Kirapas Sauta and your wife.

Means Assessment Report (MAR)

16.	The salient points from the MAR are:

•	You are self-supporting
•	You have an oil palm block and betelnut plantation
•	You have ability to pay and have paid “bel kol” consisting of:

•	K1,020.00 cash
•	29 Live chickens
•	Roofing iron sheets
•	1 block of betel nut trees
•	You can personally pay another K 1,000.00but your siblings are willing to assist
•	Need 12 months to pay
•	Your wife (victim) wants K30,000.00 for the loss of her hand and wants you to reconcile with her family.

17.	The report, however, recommends compensation in cash and kind to the value of K5000 to be paid within 6 months.

Victim Impact Statement (VIS) 

18.	In her VIS the victim raised the following:

•	She wants you to compensate her for the permanent loss of her hand.
•	She wants you to take full responsibility for your children.
•	She will not accept you back as her husband. She wants to live separately because of the ordeal she went through and the hardship she is currently experiencing.
•	If you ever remarry, your new wife must not manipulate or deny her (victim’s) children’s inheritance.

THE LAW

19.	The offence of unlawfully causing grievous harm is prescribed by Section 319 of the Code.  It carries the maximum penalty of 7 years imprisonment, subject to the court’s discretion under Section 19 of the Code to impose a lesser sentence.

20. While that may be the maximum penalty, it is well settled that the maximum penalties are always reserved for the worst instances of an offence. Cases are also treated on their own merits and circumstances and that first time offenders are not normally given the served the penalty unless matter is especially aggravating or a worst case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi (No.3) v The State [1982] PNGLR 92; Hen Kuru v Was Kombra (1981) N292 (L)) To assist the Court in arriving at an appropriate sentence, guidance may be had from sentences imposed by other judges in similar cases.  

SENTENCING TREND

21.	For an idea of the sentencing trend for this offence I adopt the cases I cited in the matter of The State v Emoto Noine CR No. 179 of 2012 (unreported and unnumbered judgment dated 25th September 2013) for which I had just passed sentence on a couple of days ago.

22.	The State v Henry Idab (2001) N2172 (per Kandakasi J.).  The prisoner was among a group of men who attacked the victim – a Village Peace Officer – over insults made to the prisoner’s mother by other persons.  He was attacked with bush knives and stones and sustained two deep cuts on his left upper arm and a superficial slash on the chest wall.  His right thumb was severed and left hanging only by the skin.  This was a crippling handicap as the victim was right-handed so he could not therefore do any heavy lifting.  The prisoner pleaded guilty, was a first-time offender, there was non-legal provocation, but the offence was aggravated by fact that it was a group attack and the use of dangerous weapon.  His Honour imposed a sentence of 5 years but expressed the view that if it were not a guilty plea, he would have imposed the maximum penalty of 7 years.  Two (2) years of the sentence was suspended on terms.

23. 	The State v Steven Moni & Ors (2006) CR 293 – 297 of 2004 (per Cannings J.).  The prisoners pleaded guilty to one count of causing grievous bodily harm with intent to two victims with knives and other weapons.  One of the victims had his arm chopped off but not by any of offenders.  He, however, suffered multiple knife wounds.  The other victim suffered knife wounds to his left arm.  Some of the offenders paid “Bel Kol” money to the victims.  There, the court imposed sentences, ranging between 5 – 3 years depending on prisoner’s degree of participation.

24.	The State v Eddie John Naopa (2003) N2411 (per Kandakasi J.)  There, a gang attacked schoolgirls returning from a Scripture Union Fellowship.  The prisoner grabbed the victim and threatened her with a knife in fact cut her left fingers.  She fell into a drain and the prisoner shot her in her eyes with a stone with a sling shot.  Though the victim recovered from her injury to her eyes, she unfortunately lost 100% sight from that eye.  The prisoner was a first-time offender.  He pleaded guilty to the charge and expressed remorse.  Even though compensation was paid, the offender did not contribute to it.  He was sentenced to 5 years, 3 of which were suspended on terms.

25. The State v Bob Ananias CR No. 1413 of 2003, CR No. 1414 of 2003 (unreported and unnumbered judgment dated 20th April 2006 by Cannings J.).  There, the prisoner pleaded guilty to two counts of causing grievous bodily harm to two victims who he had suspected of being responsible for her mother’s illness through sorcery.  He held them captive and slashed one of the victims on the leg with a bush knife.  He also cut off one of his fingers.  He then slashed the other victim with the knife.  This victim suffered permanent injuries.  The offender was sentenced respectively for 1 year and 3 years.

26. 	The State v Ambe Tu (2008) N3306 (per Kandakasi J.). The prisoner pleaded guilty to causing grievous bodily harm to his wife who had run away from the prisoner and their children and was having a relationship with another man.  The prisoner inflicted multiple cuts to victim’s body including both hands living her with serious disability. The wounds were life threatening. The prisoner’s guilty plea, nil priors and non-legal provocation against the prevalence of the offence, that no compensation was paid and imposed a sentence of 4 years. 

27.	The State v Fidelis Kiatni (2011) N4331 (per Ipang AJ).  The offender pleaded guilty completely chopping off the victim’s right hand.  He was a youthful offender with no prior convictions.  Against him were the facts that he used a dangerous weapon and the victim lost 100% permanent disability to his right hand.  The offender was sentenced to 4 years, 2 of which were suspended on terms.

28.	The State v Paino Auduwa, CR No. 520 of 2011 (unnumbered and unreported judgment delivered on 7th of December 2012 at Kimbe).  The prisoner there attacked the victim with a bush knife slashing his ankle.  The ankle was fractured and was only held by the skin.  Though the doctors managed to debride the leg, the victim will not regain full and complete use of his leg.  This was a vicious attack.  The prisoner pleaded guilty, was a first-time offender, expressed remorse and there was non-legal provocation. No compensation was made nor was any offer for reconciliation given to the victim.  I viewed this case to be a near worst case and imposed a sentence of 5 years. I suspended 3 of these with conditions which included K5,000.00 compensation and reconciliation.

29.	In The State v Emoto Noine (supra) the prisoner there confronted the victim who had some time before made sexual propositions to his wife.  He fought with the victim and then retired.  However, the victim threw a stone at him, and the prisoner returned and, in an attempt, to parry a blow by the victim, the prisoner cut the victim’s hand above the wrist.  The hand was later amputated.  I sentenced the prisoner to 4 years imprisonment and suspended two years with conditions.

YOUR CASE

30.	Now moving on to your case I consider the following as mitigating your your offence. 

•	You pleaded guilty to the charge.
•	You are a first-time offender.
•	You co-operated with the police.
•	Showed genuine remorse.
•	You were provoked in the non-legal sense immediately before the
          		offence when your wife said something very insulting to you
          		in your culture suggestive of what you might do to your mother in- 		law (sexual overtones).
•	You paid “bel kol” of K1,000.00 the day after the incident and are 	willing to pay another k1000.
•	You tried and are willing to reconcile with your wife.

31.	Your lawyer as we have seen said there is a special mitigating factor in your case in that this offence was committed in a domestic setting.  While some of my brothers may have and still hold such a view, I must respectfully beg to defer. Serious assaults by men on their spouses or female members of their families should not be treated or categorized as falling under any special category.  To do so would be to send the message to abusive and potentially abusive and violent husbands, or wives for that matter, that the courts will treat them differently because their offences were committed in domestic settings.

32.	Counsel reasoned that these cases are treated as special because of the special relationship of a marriage.  Again, that cannot hold – the special relationship of a marriage is based on the promise that the couple made during their wedding day where they willingly promised to love and cherish each other in good times or bad times until death does them apart.

33.	Of course, marriages are not your bed of roses, for differences – even irreconcilable ones - do arise in the course of the marriage.  Things will be said and done that will upset if not anger a spouse provoking some negative reactions, but we are expected to act with due restraint.  This is not to say that things will not get out of hand for sometimes they do, but restraint must be exercised within our human limit for as the learned author of the Queensland Criminal Code Sir Samuel Griffith once said in the context of the defence of Extraordinary Emergency under the Queensland Code (Section 26 of our Code) “...no man is expected (for the purpose of the criminal law at all events) to be wiser or better than all mankind…”(As quoted by Lalor J. in R v Piane [1975] PNGLR 52 at 56)  

34.	That said, I do not treat this matter as special simply because it arose in a domestic setting.  There is too much violence against women and the court should not give the impression that serious and culpable behaviour will not be viewed with the seriousness that it deserves simply because a case arose out of domestic dispute. Of course, any mitigating factors such as non-legal provocation will be given due consideration.  

35.	Your aggravating factors are that you used a dangerous weapon i.e., a bush knife to attack you wife. She suffered 100% loss of her left hand thus rendering her unable to perform normal chores adequately and reduced her quality of life. Furthermore, this is a very prevalent offence, and the victim was a woman who is among a class of people who are unable to defend themselves adequately against male assailants.  And assaults against them have always been taken as an aggravating factor.  So, I take that as an aggravating for against you also.

SENTENCE

36.	As to what should be an appropriate sentence for you, I agree that this case should attract a sentence around the range suggested by the lawyers.  So, I set the starting point at 5 years.  Now, due to your mitigating factors, I set the head sentence at 4 years and therefore sentence you to 4 years imprisonment less the two months you were in custody awaiting your trial.  Your resultant sentence should therefore be 3 years and 10 months.

37.	Because of your good PSR, I suspend 1 year and 10 months from the sentence.  You will only therefore have to serve 2 years of your sentence.  One year and 10 months, are suspended on condition that you upon your release, you will enter into probation for a period of 2 years with conditions that:

(1)	You will keep the peace towards your wife.
(2)	You will pay her K3,000.00 within 6 months from the date of your release.
(3)	That you will not consume any alcohol beverages including home brewed alcohol.
(4)	You will immediately report to the probation officer in Popondetta.

__________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor:	Lawyers for the Accused