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State v Ben [2022] PGNC 180; N9623 (10 May 2022)

N9623


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 1329 OF 2020


THE STATE


V


ASA BEN


Goroka: Miviri J
2022: 14th April, 10th May


CRIMINAL LAW – PRACTICE AND PROCEDURE – GBH S319 CCA – Plea-Cut on Left Eye – Argument Over Extra Martial Affair – PSR MAR favourable to prisoner – victim prepared to accept compensation in settlement – Left Eye Blind Resulting – suspended sentence with conditions for compensation.

Facts
Prisoner suspected Victim over extra marital affair with her husband. She fought her and stabbed her on the left eye with a knife. Victim became blind as a result.


Held
Plea of guilty
First offender
Crime of passion
residual injuries
Suspended sentence conditions for compensation.


Cases Cited:
Allan Peter Utieng v. The State - Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
State v Hianu [2006] PGNC 75; N4482
State v Kara [2012] PGNC 19; N4663
State v Egi [2016] PGNC 420; N6912
Tardrew, Public Prosecutor [1986] PNGLR 91
The State v Irowen [2002] PGNC 99; N2239
The State v Philip Piapia [2017] N6763
The State v Steven Tumu [2017] N6768


Counsel:


K. Umpake, for the State
G. Apa, for the Defendant

SENTENCE


10th May, 2022


  1. MIVIRI J: This is the sentence of a wife who suspected the victim over extra marital affair with her husband. She attacked her with a knife stabbing her in the left eye, causing her to become blind.
  2. On the 19th June 2020 at Kamiufa, Goroka, the Prisoner argued with the victim Rebecca Dickson Lucas and attacked her but was stopped by witnesses there. She persisted at the main village when victim came with the witnesses. She was armed with a small knife. Upon seeing the victim, she confronted her and fought her, during which she stabbed victim on the left upper eyelid. As a result, she was taken to the Goroka base hospital where the wound was sutured and she was released. She now suffers blindness and total loss of the left eyesight.
  3. She was charged under Section 319 of the Criminal Code that, “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.”


  1. Prisoner entered a guilty plea confirming what was seen by State witnesses who were known to both Prisoner and Victim. She exercised her right to silence in the record of interview.
  2. In Allocutus She recountered, “Firstly I say sorry to the Lord, the Court, and the Lawyers. And I am sorry to Rebecca for what I did to Her. Reason for what I did to her. It is not now, I had pain in my marriage with Rebecca. This is a 2007 problem. I forgive her, she is my sister. At my back she was doing that and three times we got cross and fought previously. She said sorry to me in community. She confirmed so I gave this. She was standing with my husband and said I want to take your husband. And I said I will get you this is not first time. When she said this words, I felt bad assaulted her and gave her that injury. I did not intend to cause injuries as it was night so She got injured. She is the same clan with me, so I say sorry to her and make peace with her. She did not want to talk much in court. I have three children. First born are twins in Goroka Secondary School, and the third born is in North Goroka Community School. My husband left me and married a new wife. I am with my three children and I am looking after them. Have mercy on me and give me probation. No one will look after the children if I go to Jail, husband left me and he is with new wife. Thank you.”
  3. Defence counsel made application for presentence report and Means assessment report, adjournment was granted to furnish both to Court. Particularly to confirm or deny the extent of the relationship now. And the matters that Prisoner raised on allocutus with regard to the children, and husband who is now presumably living with a new wife. Today 10th May 2022, both reports are now before me this morning in the determination of an appropriate sentence against the prisoner who appears on bail. She did not make appearance on Friday the 06th May 2022 and still on Monday 09th May 2022. She has recounted that the Lawyer advised, and she complied with that advice, hence her nonattendance then. The effect is that this matter was to have been dealt with has been delayed to today for submissions on sentence and sentence.
  4. The first report dated 06th April 2022 is the presentence report. Prisoner is originally from Kamex village in Ward 1 Gahuku ILG Goroka District Eastern Highlands Province. She is third born child from eight siblings with the parents since deceased. Of the Lutheran faith she is not practising. And was educated to grade 10 at the Goroka Secondary School in 2003. She does not have any employment history. And therefore, does not have any savings nor, an earning current to support her family particularly the three children. She is supported by her family where she resides with her three children. She also looks after her own mother. It means in effect that any order for compensation will be drawn back to a wait and see, as there is no confirmed earnings or means to settle should order be made in that respect. Both presentence and means assessment reports furnished 06th April 2022 filed the 05th May 2022 are in favour of part suspended sentence to the offender on the condition that She says sorry to the victim with a payment of K 400. 00 with one live pig and that this is effected within 2 months. And further, She undergo counselling with the Eastern Highlands Family Voice and remains in the village on probation.
  5. The State has tendered a victim impact statement dated the 14th February 2022 that has not been filed since that day. It is unsealed and been served the defence recent. It is on terms with the presentence and the means assessment reports that victim does not want compensation because she is now blind in the left eye as a result of the actions of the Prisoner. She stated that no amount of money will bring back her eyesight. And she voices that the prisoner suspected her because She did not have anything to do with the husband of the prisoner. It is supported by a medical report dated 24th July 2020 from the Eastern Highlands Provincial Health Authority, the Eastern Highlands Provincial Hospital signed by Doctor Waimbe Wahamu who simply says, In summary, Ms Dickson is permanently blind with gross deformity of her left eyelid and cosmetic appearance as direct consequence of her stab wound to her left eye/orbit. She is awarded 100% loss of functional visual capacity and 33% loss of binocular vision. She needs regular follow-up in Eye Clinic should she develop severe left eye pain for immediate eye operation.”
  6. This is very serious considering that the attack was over nothing evidenced by the witnesses in the assertion that the prisoner makes that the victim was having an adulterous affair with her husband. It is not evidenced by witnesses at the scene, there are four named on the Indictment who state in support that the victim was indeed having an adulterous relationship with the husband of the prisoner. There is no evidence to that effect in the material tendered into court. Relevantly there is no evidence to support and justify the actions of the prisoner at the scene when she attacked the victim. Whose conditions is clearly not repairable with any amount of compensation recommended by the Probation and the Means Assessment reports. And that is clearly settled by the medical report that she now endures for the rest of her life a blind eye that has been sustained at the hands of the prisoner without justification in law apparent or identifiable.
  7. It is a very serious matter when the law is taken into the hands of citizens as is the case here. Encouragement of or by suspended sentences without proper basis identified by Tardrew, Public Prosecutor [1986] PNGLR 91, enforcing giving life to section 19 (6) is not evidenced by the presentence and the means assessment report here. There is really no justification for initially attacking supported by the State witnesses, and then going again a second time at the victim with the injuries she received to her left eye now a blind woman for life, sentence passed by the defendant without evidence of the allegation of adultery. Self help in this way decays the rule of law. This is a woman who is educated to grade 10 at Goroka Secondary who ought to know the difference between wrong and right. Who did not desist or stop, but persisted until victim was wounded and now sustains for life a blind left eye?
  8. She cannot shield behind the welfare of her children now in school to avoid the dictate of the law. The sentence prescribed is 7 years imprisonment. It is clear from Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, she must be given her just dues in law as each case is determined by its own facts and circumstances by Simbe v The State [1994] PNGLR 38. I am mindful that attempt must be given to the offender opportunity to make good the right. Here there is no evidence to support that the suspended sentence consistent with Kumbamong v State [2008] PGSC 51; SC1017 be opportunity for the prisoner to make good. She does not have the financial means immediately to make good, if order is made. She has pleaded guilty, but suspension is not based on emotions, but real opportunity to make good the wrong. Of particular consideration, is the desires of the victim who does not want compensation, but a term in prison to make good. It is not binding on the court but is one of the factors to determine an appropriate sentence here.
  9. Counsel for the defence has submitted reliance on State v Hianu [2006] PGNC 75; N4482 (25 August 2006) which drew 4 years IHL 2 years suspended and 2 years served in custody for a similar case where a bottle was smashed on the face, victim who suffered as here total blindness of the eye as here. Similarly, in State v Kara [2012] PGNC 19; N4663 (10 May 2012) 4 years was imposed for grievous bodily harm to the eye. It was superficial and not permanent injury to the eye and compensation was paid even before matter came to court. The court suspended wholly the four years IHL and on condition for the payment of compensation. In State State v Egi [2016] PGNC 420; N6912 (8 March 2016) breaches of the law leading to the cut delivered the victim to the face and his left eye as here 3 years was imposed all to be served in jail. What is evident is unlawfulness that draws with permanent injuries particularly to the head and facial area draws stern deterrent and punitive sentences. And which are in jail derived by the seriousness of the offence. Here She will live until death with a blind left eye. No amount of compensation will redeem nor would her eye be given back her. And he reluctance to accept compensation must be respected considering similar cases set out above.
  10. Given all what is the appropriate sentence for the prisoner here?
  11. I start with the maximum sentence prescribed by that section which is 7 years imprisonment. At the outset this offence poses the element of grievous bodily harm usually associated with murder charge, and in that regard is a very serious offence. The facts set out here do not depict the imposition of the maximum sentence. And relevant in this regard are the fact that She pleaded guilty and has expressed remorse and willingness to compensate the victim a clan sister. The circumstances posed by the presentence report and the means assessment report in respect of her situation warrant immediate incarceration for the offence. There is no de facto provocation or victim having an adulterous affair with her husband detailed out here except the assertions of the prisoner. There is not even evidence in the presentence report to sway a settlement of the matter in a community hearing at that level. Or even a village court or elders within settling the matter. The assertions are by the prisoner whose interest must be balanced with that of the victim. The law is meant to be observed by all not abused as here.
  12. Yes, the life of the three innocent children who will be without their mother. But the mother should have taken their lives to heed when she set out to do what she did. They do not become the shield to what the law holds for her. She will take responsibility for her actions in law because this is not the first time that this court has seen similar. It is not a light matter State v Er [1998] PGNC 78; N1749 (31 July 1998) here was similar situation where the lawful wife wanted to give pain to the woman deceased, her husband was seeing. She stabbed her in the neck from which she died. She was sentenced to eight years IHL for the crime of murder in Lae. Where there is use of a weapon with serious life threatening injuries as in State v Irowen [2002] PGNC 99; N2239 (23 May 2002) this court imposed the maximum penalty of 7 years cumulative, where both wives were cut with a bush knife almost killing them, but they survived because they were taken quickly to the hospital but came out with serious residual injuries. That is the extreme which isn’t the case here. But family members and in the community must be protected like any other person by the law and this court has imposed similar.
  13. Where there is demonstrated by clear evidence to mend family or relationship and there is means to ensure compliance of compensation orders this court has gone ahead to impose sentence giving effect: State v Philip Piapia [2017] N6763 (17 May 2017); see also State v Steven Tumu [2017] N6768 (23 May 2017). The sentence has been in the mid-range of 3 to 4 years part custodial and part suspension in each case.
  14. In the present case I have canvased section 19 (6) of the criminal Code taking account of Tardrew, Public Prosecutor (supra) in the light of the views of Community Leader Pate Kauhi of Ward 1 Gahuku LLG Goroka. But am not convinced because this was a persisted attack over nothing that is evident of an adulterous relationship here. In the exercise of my discretion after due consideration of all above, the just and proportionate sentence is 4 years IHL and I so impose that upon the prisoner for the crime of grievous bodily harm committed upon Rebecca Dickson Lucas contrary to section 319 of the code.
  15. I order that She serve 2 years IHL in jail forthwith. A warrant will issue effecting forthwith.
  16. Further in the exercise of my discretion in the light of all set out above I order that the remaining 2 years of the sentence will be suspended on 2 years’ probation order on the following conditions as follows:

Ordered Accordingly.


__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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