State v Pupura [2022] PGNC 460; N9984 (22 March 2022)

N9984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 486 0F 2021

THE STATE

V

MARY PUPURA
Prisoner

Popondetta: Sambua, A J
2022: 8^th, 9^th, 14^th & 22^nd March

CRIMINAL LAW– sentence – grievous bodily harm – prisoner acted alone –victim assaulted with a knife – injuries to victim’s left breast and shoulder blade – seriousness of the offence - prevalence of offence – mitigating factors – plea – willing to pay compensation – remorse expressed in allocutus – CBC pre-sentence reports – custodial sentence of 2 years imprisonment is appropriate – suspension of 12 months considered appropriate.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653

John Elipa Kalabus v The State [1988] PNGLR 193

State v Elizah Suitawa [2021] N8805

State v Nipa Homolpi [2015] N5863

State v Mary Saka [2016] PGNC 276; N6481

State v. Martin Konos (2010) N4157

State v. Veronica Kulia (2010) N5403

State v Timoria [2017] PGNC 105; N6745

State v. Bill Kora (2012) N4663

Counsel:

Mr. Kuku, for the State

Mr. Yavisa, for the Prisoner

JUDGMENT ON SENTENCE

22^nd March, 2022

1. SAMBUA, AJ: The State presented an Indictment against the prisoner charging her with one (1) count of grievous bodily harm contrary to section 319 of the Criminal Code. She pleaded guilty to the charge on arraignment
   
2. The charge on the indictment read:
   

Mary Pupura from, Taututu, Sohe, Oro Province stand charged that she on the 10^th day of August, 2020 at Popondetta in Papua New Guinea unlawfully did grievous bodily harm to one Lavonia Nancy Donald .

DATED this 08^th day of March 2022

PONDROS KALUWIN

Public Prosecutor

The background of the case

3. The short background of the case is that between 4:00pm and 5.00pm of the 10^th of August 2020, the victim Lavonia Nancy Donald was sighted with the prisoner’s husband at the main Popondetta market. The prisoner Mary Pupura was informed, and she went searching for them at the main Popondetta market. When she (the prisoner) found them, her husband escaped while she confronted the victim only and stabbed her with a knife on her left chest causing a penetrating wound that also lacerated her left shoulder blade. The victim after being stabbed ran out of the main Popondetta market and was taken to Popondetta General Hospital. She was admitted and underwent a lifesaving surgery that saved her life. Otherwise, it could have been fatal. The State therefore said that when the prisoner Mary Pupura stabbed the victim Lavonia Nancy Donald with a knife on her left chest that caused a penetrating wound which also lacerated the left shoulder blade, she committed a crime of grievous bodily harm contrary to section 319 of the Criminal Code
   

The law

4. The crime of grievous bodily harm is created by section 319 of the Criminal Code. Section 319 reads:
   

“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.

5. The crime of grievous bodily harm under section 319 carries a maximum of 7 years imprisonment term. However, section 19 of the Criminal Code gives the Court an unfettered discretion on imposing other sentences instead of the maximum depending on the circumstances of each case.
   
6. It is a settle principle of law on sentence that the maximum sentence is reserved for the worst or the most serious instances of case. This principle was state in the case of Goli Golu v The State [1979] PNGLR 653 and in the case of John Elipa Kalabus v The State [1988] PNGLR 193.
   

Submissions by Counsel

7. Mr Yavisa, counsel for the prisoner submitted that the prisoner was charged with one count of grievous bodily harm under section 319 of the Criminal Code which carries a maximum penalty of 7 years.

8. He further submitted that this is not the worst case that should attract the maximum sentence despite the presence of the aggravating factors such as the use of dangerous weapon, namely a kitchen knife, the prevalence of the offence, the injury was life threatening and the victim underwent a lifesaving operation.

9. He submitted that a sentence of 12 months is an appropriate sentence and should be fully suspended.

10. In his submission on penalty, he referred to a case of State v Elizah Suitawa [2021] N8805 where the prisoner in that case was sentenced to 2 years however the sentence was fully suspended with conditions.

11. Mr Kuku on behalf of the State submitted that the crime of grievous bodily harm under section 319 of the Criminal Code carries a maximum penalty of 7 years however subject to section 19 of the Criminal Code.

12. He also submitted that maximum penalties are reserved for the most serious instance or the worst case and referred to the case of Goli Goli v The State [1979] PNGLR 653. And also submitted that each case must be treated on its own merit and referred to the case of State v Lawrence Simbe [1994] PNGLR 38.

13. He submitted further that this case is not that serious to attract the maximum penalty however the injury inflicted on the victim was serious and life threatening and therefore submitted that a sentence of 3 years would be an appropriate sentence. And he referred to a case of State v Nipa Homolpi [2015] N5863 (11 February 2015)

14. Whether part or the whole sentence is suspended, he submitted that that is a matter for the court to decide in the exercise of its sentencing discretion.

The Issue

15. The issue is what would be an appropriate penalty in the circumstances of this case? In determining the appropriate penalty, the court must consider all relevant factors of sentencing such as the statement in allocutus, personal particulars, mitigating and aggravating factors, the type and nature of the injury and any other relevant factors that will assist the court in arriving at a fair sentence.

Allocutus

16. In allocutus, the prisoner said sorry for what she had done and promised that she will not do it again. The victim was her sister, but she had been having an affair with her husband and was not happy about it so she stabbed her. However, she said sorry to God, to the judge and to the court officials and to her sister whom she had hurt and her family. She then asked the court for its mercy and to be lenient on her and place her on probation

Personal Particulars

17. The prisoner is 22 years old and comes from Taututu village in Ioma in Sohe District of Oro Province. She is married with an eight (8) weeks old baby whom she gave birth to whilst in custody at Biru Correctional Services Institution, awaiting hearing of her case. She has eight (8) siblings, and she is the last born. Her parents are still alive but aging. She is educated up to grade 8 at Ioma Primary School and she is a devoted Seventh Day Adventist Church worshipper. She has never been in trouble with the law before

Mitigating and Aggravating Factors

18. The mitigating factors in this case are as follows:

- Guilty plea
- First time offender with no previous convictions
- She expressed remorse in allocatus
- Defecto Provocation

19. The aggravating factors in this case are as follows:

- Use of a dangerous weapon - in this case a kitchen knife
- The injury was life- threatening.
- Life-saving surgery performed that preserved victim’s life.
- Prevalence of the offence of grievous bodily harm.

The Medical Report

20. The Medical Report of the victim was provided by Dr Bill Moi Seneka who described the injury as quite serious and life threatening. He stated that Nancy suffered enormously, and she nearly succumb to it on the operating table. The mother who witnessed the procedure her child went through. Nancy was confronted and stabbed over her anterior left chest with a sharp knife.

The Pre-Sentence Report

21. In the pre-sentence report compiled by the Probation Office, the victim Miss Lavonia Nancy Donald said that she wants the prisoner to be punished and also pay compensation for the injuries that she sustained. She said that she almost lost her life and spent 3 months in the hospital. Her father, Mr. Donald also shared similar sentiments saying that they had suffered a lot physically and mentally while staying in the hospital and the financial difficulties that they encountered. He also mentioned that the cost of travel to and from their village is K 150.00 per person, one way and to travel to and from hospital reviews and to attend to this case was an added financial burden to the family who are subsistence farmers. And had asked for a K59,00.00 compensation payment.

22. The Criminal Law (Compensation) Act 1991 provide for the making of compensation orders in criminal cases, and for related purposes. Section 5 provides for compensation orders. And in sub-section (3)(b) it states that no compensation ordered under this Act:

“(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,” and the value of any form of compensation other than cash shall be as determined by the court.

23. Therefore, the demand by the victim’s father for a K59,000 compensation payment is outrageous and unreasonable, and the court will not entertain such a demand and will rejected it.

24. The victim also said that the prisoner should be punished for destroying her life by causing scars on her body that will last a lifetime. The victim and her father ask this Honourable Court to take into consideration the problems faced by the victim and her family as highlighted above, when deciding on the sentence.

25. This is a case arising out of a domestic setting in a marital situation. The prisoner had been suspecting the victim of having a sexual relationship with her husband until she caught them at the main Popondetta market that day. Her husband managed to escape while the victim was not fortunate enough. I am not condoning the action of prisoner however, the victim in this case should accept some blame and responsibility in that she may have brought it upon herself by engaging in a sexual relationship with the prisoner’s husband.

26. Be that as it may, Paua New Guinea has been independent for 45 years now with more educated people unlike the period prior to independence when there were very few educated Papua New Guineans. Most were uneducated however were living a simple life in a more civilized way. Disputes were settled in a more civilized way than it is today.

27. In this day and age, there are institutions and agencies established by the Government to resolve disputes however are not being fully utilised. Instead, parties resort to violence like in this case. The prisoner should have taken the matter to police or village court instead of resorting to violence in the manner she did. She is educated up to grade 8 at Ioma Primary School which I am sure, she was aware of Government institutions and agencies that deal with such disputes.

28. She had no excuse because she had a relative who is a senior police officer here in Popondetta and was living with when she committed this offence. She should have used her in resolving her marital problem instead of taking the law into her own hands.

29. In the pre-sentence report, the prisoner told the Probation Officer that she is sorry for what she did and hopes the victim will accept her remorse and forgive her. She said that because of what she did, both families do not look eye to eye to each other and it is not healthy for both families and plans to reconcile through a compensation payment. She said that because she was angered by stories that she had heard about the victim’s affairs with her husband and that is why she attacked her in the manner she did.

30. The pre-sentence report also stated that the prisoner is a suitable candidate for probation and recommended that the court consider imposing a non-custodial sentence and place her on probation. In their assessment she has the potential to change and become a law-abiding citizen if she is given a chance. The prisoner also has a very young child who is eight weeks old which they asked the Court to take into account when determining the appropriate sentence.

31. The same pre-sentence report stated that although she does not have the means to compensate the victim, however, her extended family is willing to assist her and have about K2, 500.00 on hand to help her compensate the victim. The family hopes to raise K4,000.00 which they say is the amount of money that they will assist the prisoner with to pay to the victim as compensation payment.

32. The Probation officer has compiled and filed a Supplementally Report which confirmed that the prisoner’s extended family has raised the amount of K4,000.00 and has paid to the victim Lovaniah Nancy Donald on the 16^th of March 2022. The payment of compensation was witnessed by the State lawyer and the lawyer for the prisoner.

Sentences for Grievous Bodily Harm

33. The two case law precedents referred to by counsels during submissions were not of much assistance to the circumstances of this case. The case of State v Elizah Suitawa [2021] N8845 (14^th May 2021) referred to by defence counsel is alcohol related. In this case, alcohol is not involved. It is a domestic setting case involving marital issues.

34. The case of State v Nipa Homolpi [2015] N5863 (11^th February 2015), referred by counsel for the State, is a grievous bodily harm with intent case under section 315 of the Criminal Code. It is not relevant to the charge of grievous bodily harm in this case

35. In the case of State v Mary Saka [2016] N6481, a Popondetta case by his Honour Auka, AJ. In that case, the prisoner, pleaded guilty to unlawfully causing grievous bodily harm to Winifred Moses pursuant to s.319 of the Criminal. The brief facts of the case were that on 9^th October 2014 at about 3:00pm at Puhemo village Popondetta, both the prisoner and victim met in the village, and an argument started between them. There were others present who took sides and the argument got worse and a fight started. It was a fist fight and the prisoner started fighting with a woman from victim’s side. Unfortunately, the prisoner’s folded fist missed the woman and it landed on victim’s mouth. The victim sustained a broken tooth. The victim went to the hospital and was appropriately treated. The prisoner was sentenced to 2 years however the sentence was wholly suspended with conditions

36. In the State v. Bill Kora (2012) N4663, the accused pleaded guilty to unlawfully doing grievous bodily harm to his female neighbour in an urban setting, cutting her on the face with a bush knife, inflicting an eye injury and superficial injuries requiring seven (7) stiches. His Honour Cannings J sentenced him to 4 years and fully suspended the term in view of a favourable pre-sentence report and his preparedness to pay further compensation.

37. In the case of The State v. Martin Konos (2010) N4157, the accused pleaded guilty to unlawfully doing grievous bodily harm to his nephew by attacking him with a piece of timber, fracturing his knee and inflicting many other superficial injuries by multiple blows. His Honour Cannings J sentenced the prisoner to 3 years. The sentence was fully suspended with stringent conditions.

38. In the case of The State v. Veronica Kulia (2010) N5403, the accused during an domestic argument used a knife and inflicted injuries on victims fingers and caused fractures to his fingers. A sentence of one (1) year imprisonment was imposed with time spent in custody deducted and the balance was wholly suspended on conditions.

39. In State v Timoria [2017] N6745, Tari: Ipang, J. In this case, the facts in which the prisoner was arraigned were 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 prisoner had made some offensive comments about the victim having illegitimate child. This 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 suffered 95% loss of the use of her left leg. The prisoner was sentenced to 3 years less the pre-trial custody period

40. After taking into account the mitigating and aggravating factors and sentences in cases I have cited above, I consider that the appropriate sentence for prisoner Mary Pupura is two (2) years IHL less the pre-trial custody period.

41. I have also taken into consideration whether the whole or part of the sentence should be suspended. I have given serious thought about it. This is a case where the victim sustained life threatening injury that would have result in death had it not been for the quick medical intervention and therefore, will not suspend the whole sentence. If I suspend the whole sentence, in my view, I will be condoning her action and will not be doing justice to the victim. She deserved to be punished for taking the law into her own hands by attacking and inflicting life-threatening injury to the victim.

42. I have taken into account the favourable pre-sentence report which recommended that she was a suitable candidate for Probation Order(s) and the fact that her extended family have assisted her and had paid K4,000.00 to the victim as compensation payment. In my view it demonstrates her genuineness and the remorse that she expressed in her statement in allocutus. Therefore, part of her sentence, which is a period of 12 months will be suspended and she will serve 12 months in custody. However, since you have been in custody for 7 months and 13 days, awaiting hearing of your case, that period will be deducted from the 12 months you are to serve. That leaves a balance of 4 months and 17 days to be served at Biru CS.

Order

43. The Court orders as follows:

1. Prisoner is sentenced to two (2) years IHL

2. 12 months will be suspended with conditions because of the favourable pre-sentence report and the K4,000.00 compensation payment paid to the victim

3. The Pre- trial custody of 8 months will be deducted

4. The balance of 4 months will be served.

After serving the 4 months at Biru CS and immediately after she is released from Biru CS, she is to report to the Probation officer, Mrs Robin Surute Angavia within 24 hours and the following conditions will immediately take place:

1. That prisoner must reside at her current residential location and nowhere else for the duration of the suspended sentence period.
2. That she must keep the peace and be of good behaviour and must not

cause trouble or harass the victim and her family during the suspended sentence period.

100. If she breaches any one or more of the above conditions, she shall be brought before the National Court to show course why she should not be detained in Custody to serve the 12 months which has been suspended.
     

___________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner