N6361
	PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 953 of 2015

THE STATE

V

MARTINA TINPUAR

Kokopo: Anis, AJ
2016: 30 May & 19 July 

CRIMINAL LAW – Sentence - prisoner pleaded guilty to unlawful wounding under section 322(1)(a) of the Criminal Code Act Chapter 262 - prisoner bit the victim's left arm and cut his right leg and toes with a bush-knife - head sentence of 2 years imprisonment imposed - sentence suspended with an imposed condition

Cases cited

State v Benjamin Makile (2016) N6251
State v Jacklyn Lubiale (2014) N5775
State v. Joseph Pingu (2001) N2169	
State v Philip Lekis (2007) N5029

Counsel:

Ms T. Aihi, for the State
Ms Ainui, for the Prisoner

SENTENCE

19th July 2016

1.	ANIS AJ:  The State (prosecution) charged the prisoner with the offence of unlawful wounding under section 322(1) (a) of the Criminal Code Act Chapter No. 262 (Criminal Code).  

2.	On 17 May 2016, the prosecution indicted the prisoner.  

3.	She was later arraigned on 19 May 2016.  She pleaded guilty on arraignment to the charge of unlawful wounding under section 322(1) (a) of the Criminal Code.  I entered a provisional guilty plea.  The prosecution formally tendered the court deposition.  Upon perusing its content, I was satisfied there was sufficient evidence therein that would have resulted in a conviction against the prisoner for the said offence.  I confirmed the prisoner's guilty plea and convicted her accordingly.

4.	On 30 May 2016, the Court conducted hearing on sentence.  The prosecution tendered the Antecedent Report.  The Court administered allocatus to the prisoner.  The Court heard submissions from both parties.  Leave was also granted to the defence to tender (i) three (3) medical reports dated 6 November 2014, 11 January 2015 and 4 February 2015 and (ii) the Pre-sentence Report.  At the close of submissions, the Court reserved its ruling on sentence to a date to be advised.

5.	This is my ruling.

ISSUE

6.	The issues are:

(i)	What suitable sentence should the Court impose on the prisoner?

(ii)	And, whether custodial sentence is warranted under the circumstances of this case?

BACKGROUND

7.	The prisoner has admitted to the following facts the prosecution read out in Court:

"Allegation

Martina Tinpuar on the 4th day of January 2015 at Raniola Settlement unlawfully wounded one Moses Peter."

Facts supporting the allegation

The complainant and victim is the second husband of the accused.

The accused (is) his wife.

On 4 January 2015, between 8 and 9pm the complainant was at Raniole Settlement attending a birthday party.  The accused went with a bush knife and cut him.

The accused cut the victim on his right leg, then his toes and bit his left arm.

The accused was stopped by one Richard Mami she then stopped cutting the victim and fled.

The actions of the accused contravened Section 322(1) (a) of the Criminal Code Act."

PRISONER'S DETAILS

8.	The prisoner has no prior convictions. 

9.	She is 53 years old.  She comes from Anir Island in Namatanai in New Ireland Province.  She is the firstborn of eight (8) siblings, that is, three (3) males and five (5) females.  To date, three of her siblings (i.e., one male and two females) and her parents have passed on.  The rest of her siblings are married and living on Anir Island.  She only completed grade 6.  Prior to the prisoner's arrest, she was working as a house meri with a company called Poroman Security Service in Kokopo.  Complainant Moses Peter and the prisoner lived together as a couple at Raniola settlement in Kokopo, East New Britain Province.  The prisoner used to own a house there.  They lived together sometimes after 2007 up to the time she was arrested and charged.  The prisoner's house was burnt down after the incident.  The prisoner appears to have lived in a de-factor relationship with the Complainant.  Prior to that, the prisoner had been married to the Complainant's elder brother Rorepia Toi from Southern Highlands Province.  From that earlier marriage, they had four (4) children.  The prisoner later abandoned the marriage it seems and brought back her children to her village in Anir Island.  The prisoner abandoned her first marriage after her former husband tried to force her to live in a polygamous marriage. She later resettled in Kokopo.  

ALLOCATUS

10.	I observed that the prisoner showed genuine remorse in Court.  She wept and spoke at the same time in Court at the start.  She said and I summarise them herein:

(i)	she said she stood in Court to say that she was sorry for what she had done;

(ii)	she said she was sorry before God's eyes;

(iii)	she said sorry to the Court;

(iv)	she said it was her first time to stand in a Court;

(v)	she said that had it not been for what the Complainant had done to her, she would not be in Court; that it was his fault that she was now before the Court;

(vi)	she said in 2012, the Complainant Moses Peter broke her knee cap and wrist bone; she said she laid complaints with the police but the police did not arrest him; she said meanwhile, the Complainant was seeing other women whilst she suffered and that drove her to do what she had done;

(vii)	she asked the Court to be lenient on her.

MITIGATION & AGGREVATING FACTORS

11.	I note submissions presented by the prosecution and the defence on point.  Let me start by setting out the mitigating factors herein:

•	guilty plea
•	expressed genuine remorse in allocatus and in the Pre-sentence Report
•	saved Court's time and resources
•	a one-off incident
•	provocation in the non-legal sense
•	qualified under "battered women syndrome"

12.	I set out the summary of the aggravating factors as follows:

•	use of offensive weapon that is a bush-knife in the attack
•	surprise attack
•	cut more than one person

PENALTY

13.	The offence of unlawful wounding under section 322(1) (a) is categorised as a misdemeanour and carries a maximum sentence of three (3) years.

COMPARATIVE CASES

14.	The defence referred to the case State v Benjamin Makile (2016) N6251.  In that case, the prisoner pleaded guilty to unlawful wounding under section 322(1) (a) of the Criminal Code.  The prisoner attacked his brother violently with a bush-knife.  The Court sentenced him to two (2) years imprisonment.  One (1) year was suspended with imposed conditions, that is, subject to the prisoner serving the first year in full in custody.

15.	The prosecution referred to three (3) cases.  The first is the case of State v Philip Lekis (2007) N5029.  The prisoner slashed his sister on her head with a bush-knife.  He pleaded guilty to the offence of unlawful wounding under section 322(1) (a) of the Criminal Code.  The Court ordered the starting point for sentence at 18 months.  The Court sentenced the prisoner to 30 months imprisonment.  The Court deducted the pre-sentence time the prisoner had served and wholly suspended the sentence with imposed conditions.  The second case is the case of State v Jacklyn Lubiale (2014) N5775.  The prisoner pleaded guilty to unlawfully wounding a woman by cutting her with a knife on her shoulder.  The Court set the starting point at 18 months and sentenced the prisoner to two (2) years imprisonment.  The Court wholly suspended the sentence and imposed conditions, which included payment of compensation to the victim.  The third case is the case of State v. Joseph Pingu (2001) N2169.  This was a sorcery related assault.  The prisoner pleaded guilty to unlawful wounding under section 322(1) (a) of the Criminal Code.  The prisoner used a bush knife to cut the victim's head with the intention of killing him.  The victim moved his head and the bush knife cut the victim's right shoulder and almost severed the victim's right hand.  The Court sentenced the prisoner to three (3) years imprisonment.  The Court ordered the prisoner to serve one year in custody less the time already spent in custody.  His two (2) years imprisonment sentence was suspended with imposed conditions which included an order that the prisoner pay K5, 000 as compensation to the victim.

16.	In my opinion, the case authorities cited by both counsel are relevant for this purpose.  I find that these cases are sufficient for me consider to determine an appropriate or fitting punishment for the prisoner herein.

SUBMISSIONS ON SENTENCE

17.	The defence submits in summary that the prisoner should receive suspended sentence.  The defence submits the prisoner was punished by the victim's people for what she had done to the victim.  The defence submits that the prisoner's house was burnt down to ashes and her valuables were destroyed or looted.  The defence submits the prisoner was also severely beaten-up after the incident.  Because of these, the defence urge the court not to also order compensation as part of any imposed conditions against the prisoner.

18.	The prosecution submits the head sentence should be between 1 to 2 years.  The prosecution submits that if suspended sentence is imposed on the prisoner, the Court should also consider and impose conditions.

FINDINGS

19.	I will impose a head sentence of two (2) years imprisonment on the prisoner.

20.	I regard the offence committed by the prisoner to be serious.  This was a surprise attack on the victim.  The prisoner has confirmed that (i.e., the surprise attack) in her own words in the Pre-sentence Report.  Let me make a general remark here.  I note that life is not perfect for everyone including that of a judge, or a priest, or a villager or a grass-roots person.  But that again, in my opinion, is a fundamental nature of life itself.  We all have or are required to deal with problems or challenges rationally on a daily basis.  That is what is expected, regarded or demanded of us if we are to live in a civilised society.  But what the society does not expect is for someone to use violence or unlawful means, to try to solve a problem or express his or her view.  This prisoner herein is no exception.  The prisoner has no right whatsoever to cut the Complainant in the manner as she had done.

21.	On the other hand, I do find some evidence or level of provocation in the non-legal sense.  When the prisoner appeared at the birthday party that evening on 4 January 2015, her husband or lover, which is the Complainant herein, was seen holding and kissing another woman.  The prisoner said despite the fact that she did back away at first without being seen and walked back towards her house, her thought of what she had witnessed provoked her, which was why she said she returned and assaulted the two and in the process unlawfully wounded the Complainant by cutting him with the bush-knife.

22.	I also find evidence, which shows that the prisoner and the Complainant's relationship had been tarnished with violence.  I accept the prisoner's claim, giving her the benefit of doubt, that the Complainant had mistreated and injured the prisoner in the past including inflicting permanent injuries to her body.  I say this also in light of the three (3) medical reports, which the prisoner has tendered in Court.  The injuries inflicted upon her appear real.

23.	I also find, again giving the prisoner the benefit of doubt that she had suffered in that she had been punished for her actions as she claims herein.  The prisoner firstly lost her house, which was ransacked and later burnt down to the ground.  The Complainant's people assaulted her after the prisoner attacked the Complainant.  The prisoner appeared to have suffered financially, physically as well as mentally as a direct result of her unlawful actions against the Complainant.

24.	I do not think this is a case where it is appropriate for the Court to award compensation if I was to impose conditions as part of the sentence against this prisoner.  In my opinion, the prisoner it seems has already paid a high price outside the justice system for the wrong, which she has admitted to committing before this Court.

25.	The prisoner, in my view, has shown genuine remorse.  I find the prisoner to be mature and she seemed to have realised the wrongs she committed.  The prisoner shed tears in Court during administration of allocatus.  I also sensed at that time (i.e., during administration of allocatus) that the prisoner perhaps did not just shed tears in Court because of the offence she has committed.  I think she also shed tears to show to the Court that she had been through a lot alone in her life.  She perhaps felt that life had been somewhat unkind to her no matter where she looked or turned to.

26.	Having made these findings, I ask myself whether sending this prisoner to prison would be a fitting punishment.  Would that do justice to her or to the society?   Would that be viewed by a reasonable person as the sensible thing to do under the circumstances of the case?  Or would it be regarded as 'driving in the final nail to the coffin' in relation to the prisoner's already tarnished life, so to speak?  

SENTENCE

27.	I note that I have already imposed a sentence of two (2) years imprisonment on the prisoner.

28.	I will answer "no" to the question of whether sending this prisoner to the prison would be a fitting punishment for her.

29.	The prisoner has been in custody since 12 March 2015.  She has been in custody for one (1) year 4 months and 6 days before the date of her sentence herein. 

30.	I will deduct one (1) year 4 months and 6 days from the two (2) years sentence imposed.  I will further fully suspend the balance of her sentence of two (2) years.

31.	I will further order that the prisoner is to keep well away from the Complainant for a period of two (2) years from the date of order of this Court.

DECISION

I make the following orders:

1.	The prisoner is sentenced to two (2) years imprisonment.

2.	The period spent in custody, which is 1 year 4 months 6 days, is deducted from the said two (2) years imprisonment term.

3.	The balance of the prisoner's sentence of two (2) years is wholly suspended.

4.	The prisoner shall keep well away from the Complainant for a period of two (2) years from the date of this sentence.  During the suspended sentence period, if the prisoner is found to breach the term imposed with her suspended sentence and if called on, she shall appear and receive judgment in respect of her service of the portion of the sentence.

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Office of the Public Solicitor:		Lawyer for the prisoner
Office of the Public Prosecutor	:	Lawyer for the State