State v Timoria [2017] PGNC 105; N6745 (5 May 2017)

N6745

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 470 OF 2017

BETWEEN:

THE STATE

V

JANET TIMORIA

Tari: Ipang, J
2017: May 03 & 05

CRIMINAL LAW – Sentence – Criminal Code Act, s.319 causing unlawful grievous bodily harm – the offender and the victim co-wives to their common husband and differences between themselves which eventually led to confrontation as a result the offender used a bush knife and chopped the victim three (3) times on her left knee.

Cases Cited:

State v. Nandex Wepo [2016] PGNC 164; N6356
State v. Mau (2012)
State v. Antonia Dickson CR. No. 1866 of 2016 N6675

Counsel:

Mr. R Galama, for the State
S. Inisi, for the Accused

DECISION ON SENTENCE

5^th May, 2017

1. IPANG, J: This is the decision on sentence for the offender who had pleaded guilty to one (1) count of causing grievous bodily harm contrary to section 319 of the Criminal Code Act.
   
2. The brief facts upon which the offender was arraigned are as follows; on the 12^th of February, 2016 at Piribu Village, Tari Hela Province the offender slashed the victim Anna Timoria below her left knee. Prior to this incident, the offender had made some offensive comments about the victim having illegitimate child. This has upset the victim Anna and she called the elders of Piribu Village and wanted the offender to explain why she made those comments. The offender came out of her house walked away from the crowd that gathered. The victim Anna while holding her baby, ran towards the offender and pulled her skirt. The offender produced a bush knife and chopped the victim Anna three (3) times on her left knee. The victim fell to the ground unconscious. Her baby was dragged out from her. The victim suffers 95% loss of the use of her left leg.
   
3. The offender has been charged for causing unlawful grievous bodily harm contrary to section 319 of the Criminal Code Act. This provision reads;
   

“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”.

4. The maximum prescribed penalty is a term of seven (7) years. Imposition of a maximum sentence is not automatic. It is the sentencing practice that the maximum sentence is reserved for worst type of cases.
   
5. The offender’s Antecedent Report tendered in recorded no prior conviction. In her allocutus, she said sorry for what she did. She said she has paid compensation to the victim in the following; one matured pig valued at K2500.00, another matured pig valued at K1, 700 and one more pig valued at K800.00. A total of three (3) pigs and cash money of K1, 200.00. She said peace has been restored. She also said sorry to this court and asks if she can pay a court fine.
   
6. The offender is a matured female adult from Hopiate Village, Magarima Hela Province. She is self-employed and she is the second wife of her common husband Timoria who has three (3) wives. She has no children.
   

Mitigating factors

7. The following are the mitigating factors;
   
   1. Offender pleaded guilty
   2. This is a fresh committal having been committed on the 31.03.2017
   3. No prior convictions
   4. Expressed remorse.
   5. Paid compensation
   6. One of the co-wives
   7. Peace restored and both offender and victim lives together.
   8. There was a defector provocation in a non-legal sense.

Aggravating Factors

8. The following are the aggravating factors;
   1. An offensive weapon, a bush knife was used.
   2. Prevalent of the offence.
      
9. Mr. Iinisi for the offender submitted that a custodial sentence will not be appropriate. He submitted that the most appropriate sentence will be a suspended sentence with conditions. Counsel recommended for two (2) years wholly suspended.
   
10. Mr. R Galama for the State submitted that a bush knife was used. In such a circumstance, a custodial sentence is warranted. Counsel recommended for 3 and a half (3 ½) years but agrees two (2) years be appropriate.
    
11. In the case of State v. Mau (2012), the prisoner pleaded guilty to one count of grievous bodily harm to the victim one Tuna Uve. The prisoner and the victim were co-wives, married to the same husband. On the 10^th day of March, 2012 at around 4PM, at Vanamami Farmers Centre in Kokopo, the victim Tina Uve on one side was having an argument with their husband Mr. Mau and the prisoner was on one side. The husband was a lecturer at the above mentioned Institution and they all lived at the Institution where the incident happened. After the argument started, the husband walked across to the victim’s kitchen and broke the door down. Having seeing this Tina got up and expressed concern that her kitchen will be left open unattended to when they are not there. Tina got up, she took a stone and hit the door to the prisoner’s kitchen and also broke the door down. Having seeing this, the prisoner got up and swung her hand at Tina and a fight developed between the two (2) wives. In the cause of the fight the victim swung her hand at the prisoner and the prisoner caught the victim’s left hand and bit her left index finger and finger nail totalling to a permanent injury. This was not the worst type of case and the mitigating factors were considered. Prisoner was sentenced to (12) months imprisonment. However, sentence was wholly suspended on conditions such as payment of K500.00 compensation to be paid within 14 days to the victim.
    
12. In the case of State v. Nandex Wepo [2016] PGNC 164; N6356 bush knife was used to slice the left hand in-between the pointer and middle finger which has now caused the 80% loss of the pointer finger to the first victim which was the brother in law of the offender and to the second victim, she sustained a broken arm and scars to her body, she was the wife of the offender. Court sentenced offender to four (4) years imprisonment for the second count. Sentence to be served concurrent, one (1) year and 8 months was deducted for the time spent in custody awaiting trial and the balance of one (1) year was suspended. One (1) year 4 months was to be served in custody.
    
13. In State v. Veronica Mandili Kulia (2010) N5403, the offender pleaded not guilty to the charge of grievous bodily harm following a trial. The offence arose out of a domestic setting as well in which the offender complained that her husband the victim was having marital affairs with other women. There was the use of bush knife held by victim and offender (husband and wife) respectively threatening each other. During the struggle, the victim sustained injuries on his right hand included fractures to his metacarpal bones 3^rd and 4^th digits and there was disfigurement to the middle fingers which clearly showed a permanent injury. However, the court considered that she was a first time offender, she was a good citizen with high standing Christian principles and she has paid some compensation to the victim. A sentence of one year imposed, time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions.
    
14. In the case of State v. Neiman (2013) PGNC 8; N4957, the offender Neiman Dua plead guilty to unlawfully doing grievous bodily harm to his wife Margret Dua and has been convicted of that offence under section 319 of the Criminal Code. This incident occurred at Murunas in the North Coast area of Madang Province on the morning of Saturday 28^th April, 2012. The offender was at that time employed by the Cocoa and Coconut Institute. He and his wife and family were living in the vicinity. He had been returning on a ship from Wewak to Madang and rang his wife and told her to meet him at the wharf in town. She did as she was told and met him at the wharf and they boarded a PMV bound for Murunas. On the way in the moving vehicle he questioned her over an alleged affair she was having with another man and threatened her with a bush knife and scissors. She was frightened and on her arrival in Murunas, she attempted to run away from him but he chased and attacked her with the bush knife, inflicting two separate wounds, the most serious of which almost severed her left arm. She was rescued by passers-by and the police arrived soon after the attack and apprehended the attacker. She has permanent disability of both arms. The offender was sentenced to five (5) years imprisonment. However, he had co-operate with the police and paid compensation, and therefore the rest of the sentence was wholly suspended.
    
15. In the case of State-v-Jumbugu (2012) PGNC 36; N4627, the brief facts of this case are as follows; On the 13^th of March 2011, the offender was at his house at Buvussi Oil Palm Settlement with other family members, when the victim and her husband confronted the offender following an attack on their son at the offender’s place. The victim’s husband argued with the offender while she stood by in apparent support and encouragement of her husband’s altercation with the offender. Fazed by the confrontation, the offender chased after the victim. And when she tripped and fell, offender attacked her with a busk knife, cutting three fingers on the right hand. He was sentenced to four (4) years imprisonment. However, there was no evidence that the offender is a violent person who was likely to reoffend. Therefore a sentence both useful to the offender and the community was awarded. The four (4) years sentence was suspended and offender was placed on probation.
    
16. In State-v-Veronica Mandili Kulia (2010), the offender pleaded not guilty to the charge of grievous bodily harm following a trial. The offence arose out of a domestic setting as well in which the offender complained that her husband the victim was having marital affairs with other women. There was the use of bush knife held by the victim and offender (husband and wife respectively) threatening each other. During the struggle, the victim sustained injuries on his right hand included fractures to his metacarpal bones 3^rd and 4^th digits and there was disfigurement to the middle fingers which clearly was a permanent injury. However, the Court considered that she was a first time offender, she was a good citizen with high standing Christian principles and she had paid some compensation to the victim. A sentence of one year was imposed, time spent in custody was deducted and the balance of the sentence was wholly suspended with conditions.
    
17. This case is similar to State v. Antonia Dickson CR. No. 1888 of 2016 (15.03.17) N6675. The offender and the victim are co-wives of one Dickson Kuna of Porolo village, Lower Mendi, Southern Highlands Province. On the 23rd March, 2016 at around 7:30pm the victim was in her house preparing dinner for her family. She went out of her house to collect some firewood. While she was outside the house, she saw a dark figure approaching her. She could not recognize the face from the distance as it was dark. The figure was the offender who was at that moment armed with a bush knife and stones. The offender approached the victim by cutting her on her right leg below her knee with the bush knife. Then she smashed her leg bone with stones she had on the spot where she had cut her. The victim fell to the ground covered in blood. She was taken to the hospital and received treatment. She suffered deep cut and compound fracture of right tibia bone. She has suffered some permanent disability in terms of deformity and unable to walk normal and she is still undergoing treatment.
    
18. The court considered the appropriate sentence for the prisoner to be four (4) years imprisonment. The court deducted one (1) month pre sentence period. This left the balance of three (3) years, 11 months to be served. Taking into account the mitigating factors etc... the court suspended one (1) year and 11 months. This further left two (2) years imprisonment to be served. From these two (2) years the prisoner was left with one (1) year imprisonment. After serving sentence of one (1) year imprisonment the prisoner was to be placed on one (1) year Probationary Supervision with conditions.
    

Court’s Analysis

19. This offence committed involved a serious violence and assault against a person. The offence of grievous bodily harm is prevalent. On review, the medical report noted the lower left limb has; loss of sensation below the knee; foot drop; loss of normal movement of the knee and loss of normal function of support and movement. Dr. Thomas Aiyaka concluded that this incident has caused 95% disability to the lower left limb and this is permanent.
    
20. The offender has paid compensation to the victim. Total of three (3) pigs valued at K5000.00 and cash money in the sum of K1, 200.00. She has expressed remorse.
    
21. Taking into account all the factors together, I consider this case does not warrant imposition of maximum penalty of seven (7) years. I will instead apply section 19 of the Criminal Code Act and impose a lesser term of sentence.
    
22. I consider a head sentence of three (3) years would be appropriate. So I impose a three (3) years sentence. I deduct ten 10 months as pre-trial custody period. This will leave the prisoner to serve two (2) years, two (2) months. I wholly suspend the two (2) years, two (2) months and place the prisoner on two (2) years good behaviour bond with conditions; (See Public Prosecutor v. Tardrew [1986] PGLR 91, for the prisoner’s personal deterrence).
    

23. The Court orders as follows:

1. Within six (6) months the prisoner shall pay the compensation in the sum of K3, 000.00 to the victim.
   
2. Prisoner is to do 20 hours of community service.
   
3. Prisoner is to keep peace and good behaviour towards the victim.
   
4. Prisoner should not commit same or similar offence.
   
5. Prisoner should attend regular church service and counselling.
   
6. Prisoner’s bail and Guarantors cash sureties be refunded.

_____________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Prisoner