State v Wagep [2016] PGNC 350; N6575 (12 October 2016)

N6575

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1287 OF 2015

BETWEEN

STATE

AND

SIMON WAGEP

Offender

Mendi: Ipang, J

2016: 06^th &12^th October

CRIMINAL LAW –Sentence - Criminal Code Act, Chapter 26 – Section 319 –Offender assaulted the victim his wife with an iron rod, punched her with his fists, kicked her all over her body – the victim sustained broken left arm, deep cut to her forehead and bruises on her body – Guilty Plea.

CRIMINAL LAW – Sentence – Criminal Law (Compensation) Act, 1991 – Compensation paid – K3, 070 cash money and two (2) pigs valued at K3, 500 paid to the victim.

Cases cited:

State-v-NandexWepo [2016] PGNC 164; N6356 (14 July, 2016)

State-v-Kawin [2001] PGNC 42; N2167
State-v- Jumbugu (2012) PGNC 36; N4627
GoliGolu-v- The State [1979] PNGLR 635

Counsel:
S. Luben, for the State
C. Koek, for the Offender

DECISION ON SENTENCE

12^th October, 2016

1. IPANG J: The offender Simon Wagep from Map village, Mendi, Southern Highlands Province has pleaded guilty to one (1) count of causing Grievous Bodily Harm to another person Yana Samuel, the victim, who is his wife contrary to section 319 of the Criminal Code Act, chapter 262. This is the decision on verdict of the offender.

2. The brief facts on which the offender pleaded guilty to are as follows; the offender is the husband of the victim Yana Samuel and both live together at Map village, Mendi, SHP. On the 15^th of March, 2014 at around 8:30pm the victim returned from Mendi with two (2) of her brothers Joe Yakop and Nathan Temo, the victim gave a chicken to the offender’s sisters to cook. They were all sitting in the house when the offender arrived and stood at the doorway. He was under the influence of alcohol. The victim and her two (2) brothers were also drunk as they consumed two (2) bottles of OP Dark Rum before going home.
   
3. The victim told the offender to move out of the doorway. However, without saying a word, the offender picked up an iron rod from the fire place and hit the victim in her left shoulder. He then told his sisters to get out of the house so he could burn it down. The sisters went out of the house. Nathan Temo pleaded with the offender so the offender left him out of the house, whilst the victim and Joe Yakop were still in the house. The offender then strike the matches three (3) times to set fire to the house but could not succeed. The offender then left to search for fire. As soon as he left, one (1) of his sisters’ opened the door and set free the victim and Joe Yakop.
   
4. After the offender returned, he found out that the victim and Joe Yakop were set free. He then hit his sisters with the same iron rod. He chased the victim and her two (2) brothers. He assaulted the two (2) men with the iron rod thereafter turn on the victim. He hit the victim on her forehead with the iron rod, punched her with his fists and kicked her all over her body. As if this was not enough the offender chased the victim back to the house. Inside the house, the offender hit her with a screw driver on her head, knees and kicked her all over her body and she fell on the ground. As a result of the assault, the victim sustained a broken left arm, deep cut to her forehead and bruises to her body.
   

Antecedent Report

5. The Antecedent Report presented for the offender records no prior conviction.
   

Allocutus

6. In allocutus, the offender said sorry to God for what he has done to the victim, being his wife. He said sorry to this court, the lawyers, Associate for wasting Court’s time. He said sorry to his wife. He told the Court that this is first time to appear in Court. He has two (2) wives and three (3) children. He is the only bread winner. He asks the Court to have mercy on him.
   

Submission by Defense

7. Ms. C. Koek of counsel of the offender submitted that the penalty provided for the offence of grievous bodily harm under section 319 of the Criminal Code Act, chapter 262is imprisonment for a term not exceeding seven (7) years. The counsel then raised two (2) issues; whether the maximum penalty of seven (7) years should be imposed given the circumstances of this case or as sentence of a lower term of years or other alternative sentence subject to section 19 of the Criminal Code Act be imposed.
   
8. The following are the personal particulars of the offender submitted by Ms. Koek. The offender is;
   
   • 42 years old and comes from Map village, Karinz LLG, Mendi, Southern Highlands Province.
     
   • The first born of the five (5) children. His mother now has passed on and the father is alive but of a very old age.
     
   • A member of the United Church and a peaceful law abiding citizen until the commission of this offence.
     
   • Educated up to Grade ten (10) level. He is currently employed as a Driver with Covec (PNG) Ltd based at Mopa village in Karinz LLG. The Company is a construction company that has constructed and maintained Mendi-Kandep Road and currently working on Mendi-Tambul Road.
     
   • Has compensated the victim after the incident with cash money in the sum of K3, 070.00 and two (2) pigs valued at K3, 500.00 each. The victim and her relatives have accepted the compensation. The victim and the offender are currently living together.
     
   • Spent three (3) months in custody prior to his release on K500 District Court bail with (2) Guarantors paying K100 each as cash sureties.
     
   • He is the only sole bread winner of his family.
     
   • He is a first time offender.
     

Submission by the State

9. State through Counsel Ms. Luben conceded that the maximum penalty is always reserved for worst type of cases. She also conceded that there was no permanent injury sustained. Ms. Luben submitted that the offence took place in a domestic setting. The victim is the second wife of the offender. Counsel submitted that the offence of grievous bodily harm is common and prevalent. Therefore, it was submitted that a strong message has to be given that violence should not be used to solve dispute. Ms. Luben submitted for Good Behaviour Bond and restraining order on the offender not to assault the victim on the future.
   

Mitigating Factors

10. I found the following to be the mitigating factors;
    • The offender has pleaded guilty thus saves time and costs for putting up a trial;
      
    • The offender is a first time offender;
      
    • He expressed genuine remorse;
      
    • He is a father and a husband;
      
    • He surrendered to the police the next day after commission of the offence;
      
      • There was only one (1) attacker and that was the offender;
        
    • valued at K3, 500.00 were paid to the victim.
      

Aggravating Factors

11. The following are the aggravating factors I find;
    • There was use of offensive weapon an iron bar to commit the offence;
      
    • The offence of grievous bodily harm is common and prevalent;
      
    • Offender kicked and punched the victim several times;
      
    • The victim suffered bodily injuries which included a broken arm.
      

Case Precedents

12. In the case of State-v- Neiman (2013) PGNC 8; N4957, the husband questioned his wife over an alleged affair with another man. The husband threatened her with a bush knife and a scissors. The wife was frightened and attempted to run away from the husband. The husband chased and attacked her with the bush knife. The husband inflicted her with two (2) separate wounds, the most serious of which almost severed her left arm. The victim had permanent disability of both arms. The offender was sentenced to five (5) years imprisonment, however, he had co-operated with the police, paid compensation and therefore the whole of the sentence was wholly suspended.
    
13. In State-v-Jumbugu (2012) PGNC 36; N4627, the offender was at his house at Buvussi Oil Palm Settlement with his other family members on the 13^th of March, 2011. The victim and her husband then confronted the offender following an attack on their son. The victim’s husband argued with the offender, while the victim stood by in apparent support and encouragement of her abusive husband. The offender chased the victim. The victim tripped and fell. The offender attacked her with a bush knife cutting three (3) fingers on her right hand. He was sentenced to four (4) years imprisonment. Considering the offender’s antecedent report, the custodial sentence was wholly suspended and the offender was placed on probation.
    
14. In State-v-NandexWepo [2016] PGNC 164; N6356 (14 July 2016), the offender was found guilty on two (2) counts of causing grievous bodily am contrary to section 319 of the Criminal Code Act.On the first count, the offender hits his wife with his fists, sticks and biting her on several parts of her body. The victim wife sustained injuries to her body which included teeth bites to her shoulder, legs and breasts. In the second count, the offender swung the bushknife, which landed on the victim Kaloa Paselo’s left hand. The victim sustained injuries to his left hand in between his fingers the pointer and the tall-man through to his wrist. The offender was sentenced to four (4) years for the first count and also sentenced to four (4) years on the second count.
    

Court’s Analysis

15. In State-v- Veronica MadiliKulia, (2010) the victim sustained injuries on his right hand which included fractures to his metacarpal bones 3^rd and 4^th digits and there was disfigurement to the middle fingers and there was a clear permanent injury. The Court considered the offender was a first time offender, a good citizen with Christian principals and also that she paid compensation to the victim and sentenced the offender one (1) custodial sentence. The Pre-trial custody period spent in custody was deducted and the balance of the sentence was wholly suspended with conditions.
    
16. In Veronica Madili Kulia case (supra), Neiman (supra), NandexWepo (supra) the injuries suffered were serious and to the certain extent permanent compared to this instant case. In this instant case, the victim sustained broken left arm which has healed and injuries to other parts of her body.
    
17. In this present case the offender and his relatives paid compensation to the victim in the sum of K3, 070.00 and two (2) pigs valued at K3, 500.00 each. The victim is happy and she is living together with the offender. She was present in Court, accompanying the offender. There was no permanent injury sustained by the victim.
    
18. Considering all of the above factors, I sentenced the offender to two (2) years custodial sentence. I deduct the period of three (3) months as the Pre-sentence period spent in custody. This will leave the offender to spend one (1) year, nine (9) months. I wholly suspended one (1) year, nine (9) months sentence and placed the offender on twelve (12) months good behaviour bond with the following conditions;
    

(1) Not to assault, threaten or intimidate the victim;

(2) Not to consume any form of alcoholic drinks;

(3) To attend church service regularly;

(4) To keep peace and be of good behaviour towards the victim.

19. The offender’s bail money of K500 and his guarantor’s cash sureties of K100 each be refunded.

Sentenced accordingly,
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Offender