State v Maramundi [2021] PGNC 566; N9307 (24 November 2021)

N9307

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 684 OF 2019

THE STATE

V

ESTHER MARAMUNDI
Mt. Hagen: Toliken J
2021: 07^th June, 04^th August, 24^th November

CRIMINAL LAW – Sentence – Unlawful wounding – Guilty plea – Co-wives – Prisoner provoked by lack of attention by common husband – Stabs co-wife with kitchen knife – Single stab wound – Mitigating and Aggravating factors considered - Not a worst case – Appropriate sentence – 2 years – Personal and general deterrence – Criminal Code Ch. 262, s 322(1)(a).

SENTENCE - Effects of polygamy on co-wives discussed and considered – Law reform – Implicit recognition of polygyny by Parliament – Explicit criminalization of polyandry - Civil Registration (Amendment) Act 2014, No. 14 of 2014, s 39

SENTENCE - Suspension - Whether to suspend – Appropriate case for full suspension – Sentence wholly suspended with conditions.

Cases Cited:

Aihi v The State (No. 3) [1982] PNGLR 92)
Golu v The State [1979] PNGLR 653
Public Prosecutor v Tardrew [1986] PNGLR 91
Thress Kumbamong v The State (2008) SC1017
Public Prosecutor v Hale (1998) SC564)
The State -v- Timoria (2017) N6745
The State -v- Timothy (2014) N5593
The State v Tulia (2016) N6479
The State v Lubiale (2014) N5779
The State v Sinuga (2012) N5611
The State v Petrus (2011) N4257
The State v Sinowi (2001) N2175
The State v Gigimesi Steven (2020) N9222
The State -v- Salome Nikole; CR No. 1223 of 2019 (unnumbered judgement dated 19^th May 2020)

Counsel:

P Tendui, for the State

E Wurr and D Pepson, for the Prisoner

SENTENCE

24^th November 2021

1. TOLIKEN J: INTRODUCTION: The prisoner Esther Maramundi pleaded guilty to unlawfully wounding one Jane Waki on 27^th November 2018 at Nunga Village, Dei, Western Highlands Province. This is an offence against Section 322 (1)(a) of the Criminal Code Ch. 262.
   

Facts

2. The brief supporting facts are these: The prisoner and the victim are co-wives to Isaac Woi. On 27^th November 2018, both women were at the Kindeng Market Bus Stop when the prisoner, armed with a kitchen knife, confronted the victim by throwing a stone at her. It would have been at very close range because when the victim lifted her hands to fend off the stone, the prisoner stabbed her on the left side of her ribs with the kitchen knife. Fortunately, the prisoner was stopped by onlookers before she could inflict further injuries on the victim. The victim was treated for her wound at the Mt. Hagen General Hospital and later discharged.
   

The Offence

3. Section 322 (1)(a) of the Code relevantly provides for the offence as follow –
   

322. Wounding and similar acts.

(1) A person who–

(a) unlawfully wounds another person; or

(b) ... ,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

4. While the maximum penalty prescribed for this offence is 3 years imprisonment, it does not necessarily follow that the prisoner here will be served the maximum. She will only get the ultimate sentence if her offending is considered a worst case. In any case what she will get will largely depend on the circumstances under which she committed the offence, her level of culpability and a host of other factors including any mitigating and aggravating factors. (Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92) And to a certain extent the Court will also be guided by precedence – what sentences have been imposed in other cases with similar facts and circumstances.
   
5. My task then is to decide what an appropriate sentence for the prisoner ought to be. Viewed objectively this is not a worst offence. The prisoner’s culpability is also low hence I set a starting point at 1 ½ years.

Allocutus

6. The prisoner apologized to the Court for her offence and for wounding her sister the victim. She said that the victim ought to have respected her as the first wife but did not and this provoked her into attacking her. She offered to compensate her with 2 pigs and K3000.00 in cash but the victim refused. Despite that she is still willing to compensate her.
   

Antecedents

7. The prisoner is 34 years old and comes from Keroding Village, Dei, Western Highlands Province. She is married with 4 children, the oldest of whom is attending the University of Natural Resources and Environment, Vudal, East New Britain Province. The two younger boys are in high school while their sister is in elementary school. The prisoner is the first wife of her common husband with the victim. She has a Grade 10 level education. She trained as an Elementary School Teacher in 2014 and got registered with the Teaching Service Commission in 2015 and has been teaching since then. She is a first-time offender.
   

Submissions

(i) Defence

8. Mr. Pepson, who took over from Ms. Wurr before her elevation to the Bench, submitted on behalf of the prisoner that this is not a worst offence and should therefore attract a sentence of 12 months imprisonment only which may then be wholly suspended with an additional condition for compensation.
   
9. Counsel cited several factors which he said mitigated the offence. These are that the prisoner pleaded guilty to the offence, it was an early plea which saved time and money had she forced at trial, the prisoner co-operated with the police by making early admissions in her record of interview, expression of genuine remorse, she offered to pay compensation (which was initially rejected but the victim is now amenable to the idea), the victim’s injuries are not permanent and it was a one off incident. Counsel, however, conceded that the prisoner used a dangerous weapon to attack the victim and that this is a very prevalent offence.
   

Pre-sentence Report

10. The prisoner’s pre-sentence report (PSR) is a balance one. It captured the views of the prisoner, the victim, their common husband Isaac Woi, the prisoner’s eldest son Missack Ronltinga, community leader Kens Mara and Village Court Clerk Wama Wapra and school teacher Allen Leo.
    
11. The prisoner said that she did not plan to assault the victim who is Isaac Woi’s fourth wife. They had lived peacefully together for 1 ½ years in their husband’s village until this incident. They minded their own businesses and lived like sisters. Issues, however, begun when Isaac started giving more attention to the victim and neglecting the prisoner. Hence on the day before the incident in question, they had an argument over this very issue – that over the fact that their husband was spending more time with the victim.
    
12. When they met the next morning at the Kindeng Market the prisoner said she suspected that the victim will want to carry on with their argument and hence was alert. She had a kitchen with her, but she had no intention of using it against the victim. She had in fact been carrying the knife to cut a cucumber which she had bought at the market.
    
13. As she approached the Bus Stop, she noticed the victim with one of Isaac’s cousin sisters. She also noticed that the victim was armed with a stone as she approached her. Soon an argument ensued during which the victim threw a stone at the prisoner. She then immediately rushed at the prisoner and grabbed her blouse so tightly that the prisoner could not lift or raise her head. In her struggle to free herself the prisoner somehow stabbed the victim with the kitchen knife. They were immediately stopped and separated by a bystander.
    
14. The prisoner said she immediately regretted injuring the victim and felt ashamed and guilty. After she was released on bail, she immediately offered to compensate the victim, but she refused. The victim has since married another man, but the prisoner is still willing to compensate her. She is prepared to give her 1 live pig worth K2000.00 and pay K2500.00 in cash.
    
15. The prisoner said that despite everything her husband is a responsible man and looks after his family well even though she is the one financially supporting the family for their daily sustenance as well as being solely responsible for their children’s school fees. She has plans to attend a Teachers College to upgrade her teaching qualification so that she can teach in primary schools. She intends to do that as soon as her eldest son completes university.
    
16. Isaac Woi (the husband) acknowledged the prisoner’s contribution to the family’s welfare. He described her a dutiful wife who has her family’s best interest and welfare at heart. He confirmed that she is the only one working and supporting the family financially. He is concerned about the children’s welfare, particularly their education should the prisoner be imprisoned. He therefore asked the Court to consider imposing a non-custodial sentence.
    
17. Their eldest son Missack shared his father’s sentiments. He confirmed that his mother had been solely responsible for his and his sibling’s school fees, and he is worried that he might have to abort his university studies if his mother were to be imprisoned.
    
18. Community leader Kens Mara and Village Court Clerk Wama Wapra vouched for the prisoner’s good standing and character in the village. They say that she is well respected and has a passion for helping women in the community. She has not been in trouble with the law, nor has she appeared before the Village Court. In fact, this was her first offence. Wama Wapra stated that they attempted mediation between the parties. The prisoner offered to pay the victim K3000.00, but she refused.
    
19. Allen Leo is a teacher who witnessed the scuffle between the prisoner and the victim. He essentially confirmed what the prisoner said happened. Though he did not see exactly how the victim got stabbed he did notice the victim bleeding after he intervened and separated them.
    
20. The victim is also a teacher by profession. At the time of the incident, she was the Deputy Head Teacher of Panda Primary School. She said she was Isaac Woi’s fourth wife while the prisoner was the third. She claimed she was innocent of any wrongdoing and was quite surprised when the prisoner took out her frustrations on their husband’s lack of attention to her needs on her. She has suffered not only physically from her injury but also lost her position for some time because she was pursuing what appears to be a civil suit in court against the prisoner resulting in her not concentrating on her duties. She has since been reinstated to her position. She admitted that she initially refused the prisoner’s offer for compensation but now is willing to accept between K2000 – K3000 as fair and just compensation to her. She also admitted that she has since remarried.
    
21. The author of the PSR is of the view that the prisoner is not a danger to her community and is therefore suitable for probation supervision with a condition to pay compensation.
    
    • (ii) State
      
22. Mr. Tengdui for the State conceded that the prisoner entered an early plea and co-operated with the police by making early admissions and that there may indeed have been some de facto provocation. However, being the principal wife, she did not have any right to seek the victim out and stabbed her out of her frustrations over their common husband’s lack of attention toward her.
    
23. Counsel submitted that the victim suffered serious injuries as can be seen from the photographs in the depositions. These are confirmed by the medical report which describe a deep wound on the back lateral region measuring 5 cm deep x 4cm wide x 15cm long which fortunately did not involve the lungs, kidneys, or any major blood vessel.
    
24. Mr. Tengdui submitted that this is but another case of a domestic dispute within a polygamous marriage and urged our womenfolk to avoid getting themselves into this kind of relationship because of the potential issues and consequences that may follow. Counsel further submitted that this offence is aggravated by the fact that there was preplanning involved, the use of a dangerous weapon and its prevalence.
    
25. Counsel confirmed that the victim is now amenable to compensation despite her initial refusal to accept the prisoner’s offer. He, however, submitted that the prisoner must be given a punitive sentence which will hopefully deter her from repeating the offence. Counsel was of the view that an appropriate sentence ought to between 12 – 18 months.
    

Comparative Cases

26. I cite the following cases to show what the sentencing trend had been for this type of offence and to ensure consistency. Most of these were cited to the Court by counsel.
    
27. The State v Tulia (2016) N6479: There, on a guilty plea, the offender and the victim had an argument and a fight ensued. During the fight the offender cut the victim twice on her left forearm with a knife. The victim suffered injuries on her right wrist and left shoulder. She was taken to the hospital and appropriately treated and later discharged. The offender was a first-time offender and had offered to pay K1000 compensation to the victim. She was sentence to 18 months imprisonment. Her sentence was wholly suspended, and she was placed on 18 months good behaviour and further ordered to pay K1000 compensation within 2 months.
    
28. The State v Petrus (2011) N4257: The offender there pleaded guilty to unlawfully wounding her husband’s first wife. The victim had taken the offender and their husband to court for adultery. The husband was angry about this, so he assaulted the victim who fell to the ground. He continued to assault her and while she was still on the ground the offender stabbed her on her left breast and left shoulder with a small knife. She was sentenced to 2 years imprisonment less time in custody. One year from the resultant sentence was suspended with conditions and the offender was ordered to serve the balance.
    
29. The State v Sinuga (2012) N5611: The prisoner pleaded guilty to one count of unlawful wounding. She was angry with the victim who had been seen flirting with her husband. Upon seeing them both together, she took out a kitchen knife and stabbed the complainant twice on her back. Before she could inflict more injuries to the victim she was stopped by a passerby. She was sentenced to 12 months imprisonment which was wholly suspended with conditions including payment of compensation.
    
30. The State v Sinowi (2001) N2175: The offender here was convicted on a guilty plea for the analogous offence of unlawful assault occasioning bodily harm under Section 340, which offence incidentally carries a maximum penalty of 3 years imprisonment. It is cited here simply because the offences involved co-wives. There the offender was angry with her co-wife (victim) for deserting the family home after an argument with their husband and leaving her 5 children (including a baby) with offender to look after without leaving them food. She had done this on two previous occasions, so the offender was angry with her, so she decided to teach her a lesson. And so, when the victim returned from her village to the family home, the offender picked a piece iron and hit the victim, fracturing her left forearm. She had paid K1000 compensation to the victim before her conviction. She was sentenced to 6 months imprisonment which was wholly suspended, and she was placed on 6 months good behaviour bond.
    
31. The State v Lubiale (2014) N5779: The offender pleaded guilty to unlawfully wounding another woman whom she had suspected having an affair with her husband. She approached the victim, pulled out a knife and cut her on the right shoulder. She was sentenced to 2 years imprisonment, which was fully suspended subject to conditions including payment of compensation.
    
32. The State -v- Timoria (2017) N6745: The offender there was sentenced to 3 years for causing grievous bodily harm to a co-wife. She and the victim had differences which eventually led to a confrontation where the offender cut the victim 3 times on her left knee. Ten (10) months of the sentence were deducted for time in custody. The balance was wholly suspended on condition including payment of K3,000.00 compensation.
    
33. The State -v- Timothy (2014) N5593: There the offender and the victim (co-wives to one man) had ongoing differences which culminated in a physical confrontation. The offender stabbed the victim 3 times on her right arm with a kitchen knife. The victim dropped to the floor unconscious and dropped her baby whom she was carrying. The offender was sentenced to 3 years which was wholly suspended on conditions.
    
34. In The State -v- Salome Nikole; CR No. 1223 of 2019 (unnumbered judgement dated 19^th May 2020) I sentenced the offender to 2 years imprisonment. In that case, there had been an on-going dispute between the offender and her husband and the victim. On the date of the offence, the victim was returning from the Aid post when the offender, who had been waiting for her in the village, attacked her with a stick, inflicting injuries to the victims right ulnar and small finger. I wholly suspended the offender’s sentence and placed her on good behaviour bond with conditions.
    
35. The State v Gigimesi Steven (2020) N9222: The offender there had returned to her husband after 5 years of separation due to some marital problems. While they were separated the offender’s husband had a relationship with the victim but separated from her when he resumed cohabitation with the offender. The offender continued to hear stories that her husband and the victim were continuing to see each other. On one occasion she saw her husband with a small knife which she believed was the victim’s. She took the knife away and after confirming that it was indeed the victim’s she confronted her and stabbed her twice with the knife – once on her left shoulder and once on her left ribs. She was rushed to the Alotau Provincial Hospital for treatment. The Medical Report revealed that the victim sustained a penetrating wound to her left chest measuring 2cm x 3cm in width and length. This required an emergency drainage seal. The victim eventually recovered and was discharged.
    
36. The offender had no prior convictions, pleaded guilty, was of prior good character, co-operated with the police, was provoked in the non-legal sense, and expressed remorse. She, however, used an offensive weapon against the victim, inflicted two penetrating wounds, one to a vital part of the victim’s body (chest) which could have resulted in her death and the offence is very prevalent. These aggravated her offence.
    
37. I sentenced the offender to 3 years imprisonment. Despite strong objection to a suspended sentence by village elders whom I found were activated by malice and equally negative recommendation by the probation officer, I wholly suspended the offender’s sentence and placed her on a good behaviour bond for 3 years with conditions including payment of K2000 compensation to the victim.
    

Current case – Appropriate Sentence

38. Coming back to the current case, I accept the mitigating factors cited by the defence and only wish to add that the prisoner here was also of prior impeccable good character. There was some non-legal provocation, but the provocation was not offered by the victim but by their common husband. I will therefore place very little weight on this as a mitigating factor. On the same token I accept the aggravating factors cited by both counsel. In all, the mitigating factors clearly outweigh the aggravating factors. What then should be an appropriate sentence for the prisoner?
    
39. This case is unfortunately one of the many cases which have and continue to come before the courts involving co-wives within polygamous marriages. These have been the subject of much judicial comment, too numerous to cite here. I only wish to cite what Kandakasi J said in The State v Lubiale (supra.) on the problems polygamous marriages brought upon the parties to such marriages which are worthy of reiterating. His Honour said

“If a man is not able to keep all of his wives and children happy, he should not marry more than one wife. Presently there are calls for an end to polygamy or marrying more than one wife. Cases like this demonstrate the need to enact such laws. The Papua New Guinea Law Reports are filled with cases some of them tragic caused by such polygamous marriages. The duty is on Parliament now to enact such laws quickly for the security, peace and harmony of our society. In the absence of any suggestion to the contrary I believe the reluctance of Parliament enacting such a law is because Parliament is dominated by men who rather prefer to have more wives than just one. They appear not to care about the problems polygamy brings upon a family and the society as a whole. If they still wish to allow polygamous relations they could enact laws to punish those men who are not able to maintain peace and harmony between themselves and their wives, and between the wives and the children of such marriages.

Until such laws are enacted men are under a social and moral obligation, in my view, not to marry more than one wife unless, he is able to keep all of his wives and children happy in a society like ours which is moving fast into the modern world. I note that custom in some societies in our country does allow for a man to marry more that one wife. That was so in most cases to allow for the production of more children given the risk of death for most children due to lack of appropriate medical services. The situation in most societies in our country today is not the same as in the past. There are comparatively better health services to safeguard against the early death of children. At the same time, the pressures of the modern economy are hitting hard on families. The bigger a family is the harder it is to survive.”

40. I do agree with his Honour that unless men who take on multiple wives are made to take criminal responsibility – through legislation - for infractions of the law by their wives against each other or other women due to their philandering or for neglecting or failing to give equal attention to other wives, these women will continue to bear sole responsibility for offences they commit due to their common husband’s reckless behaviour. That unfortunately is the sad reality and women who choose or are forced by circumstances to break the law will continue to be incarcerated regardless.
    
41. They can, however, find some solace in what the Supreme Court said in Thress Kumbamong v The State (2008) SC 1017 when suggesting that a distinction ought to be made between “real criminals” who ought to be removed from society and those who should not. It said –

"The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society."

42. I do agree also with the Supreme Court there for indeed (and I probably can say with a certain degree of confidence) the great majority of women who commit serious assaults against their co-wives or others do so under extreme provocation brought about by their husband’s treatment of them and in some cases by co-wives. However, what Mr. Tengdui said is equally true – women who choose to enter into polygamous marriages do so at great risk to themselves. It is not a decision which ought to be made lightly.
    
43. This is not to place the blame entirely on such women, but it does behove those contemplating this type of relationship to carefully weigh out the benefits and disadvantages. Polygamy (more specifically polygyny - multiple wives) is legal and of course there is freedom to contract. But because of the untold misery this practice has brought upon numerous families, Parliament may to have relook at our marriage laws with the view of making the practice unlawful if we are to see a reduction of this type of offending. However, the possibility of that happening may have been dealt a death knell by Parliament’s implicit recognition of polygyny by the Civil Registration (Amendment) Act 2014, No. 14 of 2014, s 39 which also criminalizes polyandry (multiple husbands). This maybe discriminatory against women and denies them the right to equality before the law, but that is the current state of the law unfortunately.
    
44. That said, we are left with the situation where co-wives will continue to assault and sometimes kill themselves and other women as in this case. And many a good woman will continue to suffer and at worst incarcerated due to her common husband’s recklessness and inability to control his home and meet the needs of his wives.
    
45. I have considered all there is to consider, including the prisoner’s mitigating and aggravating factors, the circumstances under which the prisoner committed this offence and the relevant comparative sentences. In the circumstances, I would impose a sentence of 2 years imprisonment. This offence is very prevalent and hopefully this sentence will serve as a personal as well as a general deterrence.
    
46. The prisoner spent only a couple days in pretrial custody hence I will not deduct any of that from her sentence pursuant to my powers under the Criminal Justice (Sentences) Act 1986, s 3(2).
    

Suspension

47. Should any part of the sentence be suspended? The prisoner has a very favourable PSR. There is community support for a non-custodial sentence because of her prior good character and standing in her community. There may not be any reconciliation or restoration of her relationship with the victim because the latter is very clear about that, but she is now amenable to compensation. The prisoner has met the requirements for a suspended sentence. (Public Prosecutor v Tardrew [1986] PNGLR 91; Public Prosecutor v Hale (1998) SC 564)
    
48. I therefore wholly suspend her sentence and place her on probation for a period of 2 years with the following additional conditions that she shall keep the peace especially towards Jane Waki and be of general good behaviour and that shall pay K3000.00 compensation to the said Jane Waki.
    

Orders

49. The orders of the Court are:
    
    1. The prisoner is sentenced to 2 years imprisonment.
       
    2. The prisoner’s sentence is wholly suspended, and she is placed on probation for a period of 2 years with the following additional conditions –
       
       • (i) She shall keep the peace especially towards the victim Jane Waki, and generally be on good behaviour.
         
       • (ii) Subject to Order 3 below, she shall pay K3000.00 compensation to Jane Waki within 2 months from today.
         
       • (iii) The payment of compensation shall be witnessed by the Provincial Community Based Correction Officer who shall file a report to the Court to confirm payment of compensation no later than Monday 31 January 2022.
         
       • (iv) The prisoner shall appear before the Court on Friday 04^th March 2022 to personally confirm to the Court that she has complied with the order for payment of compensation.
         
    3. The prisoner’s bail of K1000.00 shall be converted as part-payment of compensation to Jane Waki.
       
    4. Any cash sureties paid by her guarantors (if any) shall be refunded to them.
       
    5. The prisoner has the right to appeal against her sentence to the Supreme Court within 40 days from today.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner