State v Mission [2019] PGNC 142; N7843 (9 May 2019)

N7843

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1374 OF 2016

THE STATE

V

THERESIA MISSION

Kokopo: Susame AJ
2019: 15 March, 5, 6, 12 April & 9 May

CRIMINAL LAW – Sentence After Trial- Offence – Grievous Bodily Harm –S319 Criminal Code – Unprovoked Assault – An Object Used – Permanent Injury Sustained – Special Factor - Prisoner Has A Seven Months Infant Child – 3 Years Sentence With Period In Custody Deducted – Balance Of Sentence Wholly Suspended On Prisoner Entering Into Probation With Conditions.

Cases Cited:

The State v Atanuwe Goweng CR N0. 1449 of 2015 N6212
The State v Manly Minstai Jnr (2019) N7841

Counsel:

Miss J Batil, for the State
Ms C Pulapula, for the Prisoner

DECISION ON SENTENCE

9^th May, 2019

1. SUSAME AJ: Prisoner is in court to receive her sentence. After trial court found her guilty on a charge of grievous bodily harm under s 319 of the Criminal Code.
   

Facts

2. Facts found upon which she was convicted are found in the judgment on verdict delivered on 12 April 2019. I set them out below.
   
3. Complainant (Elizabeth Doni) is the mother of Ellison Doni whose husband was having an affair with the prisoner. On the morning of 6 April 2016 Ellison had a confrontation with the prisoner as she was going to school. Both had a brawl. The brawl ended and prisoner got on a vehicle and left for school. She returned from school at about 3pm or 4pm.
   
4. As she was walking home she came upon her mother and the complainant on the road away from their respective residences. They were discussing settlement of their daughters’ conflict with the Ward Committee instead of them fighting over it and getting hurt. The prisoner walked passed them and went up to their residence.
   
5. The prisoner left her school bag at the house and walked down to fight the complainant. Complainant’s daughter saw that and they put on a fight. Prisoner then picked up a dry branch of a rain tree and approached the complainant to fight her. Same time uttering the word to the effect she will kill her and she will go to jail. She swung the branch attempting to strike her on the head. Complainant raised her hands to protect her head and the branch landed on her hand. She fell down because of the pain. As a result complainant received fractures to her 1^st digit of her right hand and 2^nd digit of her left hand. Complainant offered no provocation nor was she attacking the prisoner to prompt her to act in self-defence. Therefore, assault on the complainant was unlawful.
   

Issue

6. What is the appropriate sentence court should impose upon the prisoner.
   

Offence

7. The offence of grievous bodily harm carries a maximum imprisonment term not exceeding seven years. However, court has a wider discretion to impose an alternative sentence other than the maximum by invoking section 19 sentencing powers of the Criminal Code.
   

Allocutus

8. Prisoner had this to say in her address on sentence. I say sorry to this court for what had happened. I also say sorry to the complainant who is my aunty. She is married to my blood uncle. I ask this court to find ways for me to serve my sentence outside of the prison. I have a baby who is seven months old to be with me inside the prison. It is not good for the baby to be with me inside the prison. Otherwise my baby might get sick. That is all.
   

Mitigating Factors

• Prisoner is a first time offender.
• Has a 7 months old infant
• Prisoner expressed genuine remorse
  

Aggravating Factors

• Use of threats of violence
• Prisoner allowed the case to trial
• Object used to assault the complainant.
• Assault was unprovoked nor was prisoner acting in self-defence
  

Comparable Judgments

9. Court was referred to a number of judgments for guidance. I decided against citing them all here. I have read them. Facts and circumstances in those decided cases are unique and distinguishable from the one before me. Most of these cases involved use of bush knives while couple involved use of stick and timber. The judgments do not have a binding effect upon this court but I note the types of sentences that were passed. The sentences imposed were about midpoint of the maximum penalty of seven years. Few of them were partially suspended sentence while couple were wholly suspended sentence with conditions.
   

Submissions

10. In a nutshell Ms. Pulapula of the prisoner submitted starting sentence should be three and half years following The State v Atanuwe Goweng CR N0. 1449 of 2015 N6212. She submitted court to consider the mitigating factors and that prisoner is a mother of an infant child. That the assault occurred in a family setting and compensation to be ordered pursuant to the Criminal Law (Compensation) Act 1991. For those reasons she submitted for a wholly suspended sentence.
    
11. Miss Batil submitted the aggravating factors outweighed the mitigating factors. She argued the case is quite serious considering the permanency of the injury sustained by the victim. She submitted case warrants a strong and deterrent penalty guided by the comparable tariffs she had referred the court to.
    

Court’s View

12. Firstly, prisoner is liable to be imprisoned for a maximum period of seven years. Should I sentence the prisoner to seven years? The accepted sentencing practice in our jurisdiction is that maximum penalty should not be readily given except in a case classified as the worst type consisting of very grave features and factors. I have considered the merits of the case. This case is not the worst type deserving the maximum. I therefore, invoke powers enabling me under section 19 to impose a sentence other than the maximum.
    
13. I have read the reports filed by the Community Based Correction Officer (CBCO) or Probation Officer.
    
14. Let me make one observation here. I made similar observation when considering a pre-sentence report in The State v Manly Minstai Jnr (2019) N7841. That is the practice by the Probation Officer trying to explain the circumstances of the offence. In that case Probation Officer came up with his own version of facts of case that were slightly inconsistent to the facts upon which decision was made.
    
15. In this particular case the Probation Officer made an attempt to justify the actions of the prisoner in assaulting the complainant. That issue had been decided by the court. The court had found complainant had not provoked the assault nor did she make any attempt to attack the prisoner to prompt her to act in self - defence.
    
16. I consider that is an improper practice and should not continue. It purports to bring into question the decision of the court on the facts found. The proper course is for the Probation Officer to restate the correct and precise facts upon which the decision was made. If there was a de facto provocation that might be worth mentioning as it may be a factor in mitigation.
    
17. Prisoner must know that court will never be moved by any attempts by the prisoner or the Probation Officer to re-make the case. Court will stick to the facts decision was found and the assessment of prisoner’s culpability in reaching a sentence. Prisoner and her cousin (complainant’s daughter) had an ongoing conflict over the cousin’s husband prisoner was having an affair with. Complainant and prisoner’s mother were having discussions for settlement of the conflict with the Ward Member instead of the girls fighting each other and getting hurt. There is nothing wrong with that and is the best approach in settlement of disputes without fighting over it.
    
18. That said though the other aspects of the reports are informative and Probation Officer’s assessment and recommendations are often considered by the court in reaching a sentence.
    
19. I note the prisoner’s personal particulars. She is a first time offender with no prior convictions. She is not a threat to society. Prisoner is married and has two infant children. One is three years old and the other is seven months old. I consider these as special features to be taken into account.
    
20. Other factor that is worth considering is the views expressed by the complainant and her daughter. There is a general desire between the two families to reconcile with payment of some compensation to be decided by the court.
    
21. Payment of compensation is an honourable practice in our society. Its significance was for restoration of peace and harmony between families or conflicting parties.
    
22. But, prisoner, her family and the public ought to know is that payment of compensation cannot stand as a substitute for a penalty court is entitled to impose under the criminal law. Compensation cannot operate as a means for the prisoner to get a total expulsion from going to jail. It has limited application. It operates as a factor to mitigate a sentence. Prisoner may still go to jail even if compensation is paid.
    
23. Back to the substantive issue: What sentence should I impose upon the prisoner? I am guided by the tariffs in the cases I have been referred to.
    
24. In my view prisoner’s starting sentence should fall midpoint of seven years maximum penalty.
    

Sentence

25. Accordingly, prisoner is sentenced to three years imprisonment with hard labour at Kerevat Jail with period in custody to be deducted.
    
26. The next obvious question is whether I should suspend the balance of the sentence. There are two considerations that come to mind. The first and the foremost is the fact that prisoner is the mother of two infant children. For her to be incarcerated would mean her seven months old innocent child who is still breast feeding will be taken into the prison with her. And a prison is not an ideal habitat for a child to be raised while the mother is serving her prison sentence.
    
27. The second reason is in consideration of other mitigating factors that are favourable to the prisoner and for the rehabilitation of the prisoner.
    
28. For those two reasons balance of the sentence will be wholly suspended upon prisoner being placed on probation with the following conditions to be complied with:
    
    1. Prisoner to liaise with the Ward Member and Village Court Chairman of the Village Court area parties reside to facilitate a reconciliation ceremony
    2. During that ceremony prisoner to pay compensation of K500.00 and 200 fathoms of tolai shell money and a pig worth no more than K500.00
    3. The reconciliation ceremony to take place by 25 August 2019 to be witnessed by the CBC Officer and other leaders in the community.
    4. Prisoner to maintain peace and good conduct in the community at all times.
    5. Prisoner to comply with all instructions given by the CBC Officer
       

Summary

• 3 years imprisonment with hard labour
• Period in custody to be deducted
• Balance of the sentence is suspended with the prisoner entering into probation with conditions
• Prisoner shall have her cash bail refunded forthwith.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner