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State v Momonai [2022] PGNC 491; N10012 (11 November 2022)

N10012

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 1228 OF 2022


BETWEEN:
THE STATE


AND:
PETER MOMONAI


Popondetta: Wawun-Kuvi, AJ
2022: 31st October, 8th November & 11th November


CRIMINAL LAW-SENTENCE-Guilty Plea- Causing grievous bodily harm, 319 Criminal Code- One punch to the face-Loss of teeth- Ex-husband- Prior good character- Sentence of 12 months imprisonment


Cases Cited


State v Soso [2022] PGNC 177; N9621
State v Kend [2022] PGNC 167; N9585
State v Amo [2021] PGNC 351; N9173
State v Suitawa [2021] PGNC 104; N8845
State v Chris [2020] PGNC 426; N8535
State v Perus [2019] PGNC 99; N7816
State v Sinkil [2018] PGNC 386; N7509
State v Shi [2017] PGNC 308; N6983
State v Boi [2012] PGNC 204; N4781
State v Kund [2011] PGNC 42; N4262
State v Carol [ 2009] PGNC 143; N3762
Gima v The State [ 2003] SC730
State v Winston [2003] PGNC 146; N2347
Public Prosecutor v Hale [1998] SC 564
The State v Aruve Waibu [1994] CR1/94(Unreported and Unnumbered)
Lialu v The State [1990] PNGLR 487
Goli Golu v The State [1979] PNGLR 653
State v Kagai [1987] PNGLR 320
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulio [1980] PNGLR
Public Prosecutor v Sima Kone [1979] PNGLR 294

References


Criminal Code Ch 262

Counsel


Mr. Dale Digori, for the State
Mr. Emmanuel Yavisa, for the Offender


DECISION SENTENCE


11th November, 2022


  1. WAWUN-KUVI, AJ: Peter Momonai is estranged from his wife. He has two children from that marriage. On 14 February 2021, Peter Momonai was at the Catholic Church premises in Popondetta Town. His wife approached him and demanded money for the children. He informed her that he did not have any money. She insisted. He became frustrated and punched her in the face and twisted a finger. She lost three of her teeth.
  2. He has pleaded guilty to cause her grievous bodily harm under section 319 of the Criminal Code. I must decide the appropriate penalty.

Purpose of Sentencing


  1. I remind myself that sentencing is not only about punishment of the offender. Sentencing is a community approach, and so, it involves factors which include, but are not limited to rehabilitation, reparation by the offender to persons affected by the offence, deterrence, community protection in cases of violent offences, and communicating clearly that the behaviour of the offender is not condoned.
  2. Sentencing is not an exact science. Sentences are not reached because of applying a formula. Its a discretionary matter that requires the assessment and application of the peculiar circumstances of the individual case against the relevant sentencing principles: Lialu v The State [1990] PNGLR 487.


The Charge


  1. The offender was convicted following his guilty plea on the charge of causing grievous bodily harm under section 319 of the Criminal Code.

Penalty


  1. The maximum penalty is 7 years.
  2. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Sentencing range


  1. Mr. Digori submits for a range between 1 year and 3 years imprisonment. Mr. Yavisa submits for a sentence of 2 years imprisonment.
  2. Counsel have assisted the Court with the following cases:
  3. State v Soso [2022][1], Miviri J: The offender pleaded guilty to severing four of his wife fingers. He and his wife had gone to his parent’s house to discuss some family issues. He became frustrated and swung a bush knife at his wife. The knife cut her fingers. He was sentenced to 3 years imprisonment. Time spent in custody was deducted and the balance was suspended on conditions.
  4. State v Amo [2021][2], Rei AJ: The offender pleaded guilty to severing his wife’s left thumb. The offender went to his family home and swung a bush knife at his wife’s head. When she lifted her hand to shield her face, the knife landed on her hand and cut her thumb. The offender was sentenced to 3 years imprisonment. The sentence was wholly suspended with conditions.
  5. State v Suitawa [2021][3], Numapo, J: The prisoner pleaded guilty to striking the victim in the mouth with a stone causing him to lose two front teeth. Both the prisoner and the victim were drinking alcohol together. The prisoner went to sleep, and the victim went on to disturb the peace in the neighbourhood. The prisoner woke up and hit the victim. The victim requested compensation as both men were good friends. The prisoner was sentenced to 2 years. The sentence was wholly suspended on conditions including compensation.
  6. State v Chris [2020][4], Suelip AJ: The offender pleaded guilty to cause grievous bodily harm. He approached the victim and punched to the ground. When the victim stood up, he lifted him and upended him. As a result, the victim suffered a fracture to the jawbone and lost a tooth. He was sentenced to 3 years imprisonment. Part of the sentence was suspended with conditions.
  7. State v Boi [2012][5], Maliku AJ: The offenders were convicted following a trial for causing grievous bodily harm to a motorist. The offenders were employed with the Road Safety Authority. They each punched the victim in the face during a roadblock. The victim suffered multiple soft tissue injuries. They were sentenced to 3 years imprisonment each. The sentenced was wholly suspended and the offenders were placed on good behaviour bonds with surety of K600 each.
  8. State v Kund [2011][6], Makail, J: The offenders pleaded guilty to causing grievous bodily harm to the victim. They had suspected him of either being a person who had raped their relative and each assaulted him with their fists. The victim suffered injuries and lost three teeth. The offenders were sentenced to 2 years imprisonment. The sentence was wholly suspended, and the offenders were each placed on good behaviour bond.
  9. State v Carol [2009][7], Lenalia, J: The offender pleaded guilty to cause grievous bodily harm to his wife. He returned home and accosted her for not answering his phone calls. He punched her in the face. She suffered bruising to the face and her teeth were loose. He was sentenced to 12 months imprisonment. The sentence was wholly suspended with conditions.
  10. I have also found similar cases in which the offenders pleaded guilty to punching the victims causing loss of teeth.
  11. State v Perus [2019][8], Kangwia, J: The offenders pleaded guilty to punching a fellow inmate resulting in him losing his tooth. They accused him of reporting them to a Corrections Officer. They were sentenced to 2 years imprisonment.
  12. State v Sinkil [2018][9], Geita J: Two sisters pleaded guilty to causing grievous bodily harm to the victim. The victim accosted one of the sisters over her daughter hit her grandson. The first offender punched the victim causing her to fall. She then restrained her by using her legs to hold down the victim’s hands. Her sister, the second offender, then approached and punched the victim in the mouth and bit her left fingers. The victim lost three teeth and suffered a swollen hand. They were sentenced to 3 years and a fine of K200.00. The sentence of imprisonment was suspended with conditions.
  13. State v Shi [2017][10], Auka, AJ: (as he then was): The offender pleaded guilty to punching the victim and causing him 100% loss of vision to one eye. The victim walked into his shop and sat on a rice bag. He told the victim to leave, and an argument ensued. Some form of altercation occurred. The offender was sentenced to 3 years imprisonment which was wholly suspended with conditions.
  14. The above cases demonstrate that generally in a guilty plea involving first time offenders, where there is no use of a weapon and the offender punched the victim, the range is between 1 year and 3 years.

Culpability


  1. Mr. Digori submitted that the offence was intentional. He does not expound on this submission. Mr. Yavisa does not address the Court on the offender’s culpability.
  2. It is important to consider culpability in sentencing. No case is the same and each offender’s degree of culpability is different.
  3. Culpability is inferred from the circumstances of each case.
  4. In the present case, the offender did not plan or set out to assault the victim. He had been estranged from his wife for about a year. He was at the Church premises discussing some matters with the Priest when the victim approached him. She raised her voice and caused him embarrassment. He did not use a weapon and did not continue to assault the victim or cause her further trouble.
  5. These factors to me indicate that the offender’s culpability is on the lower end.

Harm

  1. The victim suffered the loss of three teeth and some minor injury to a finger. The victim explained that the teeth were not knocked out on impact. She had them removed after three days when she felt that they were loose.
  2. The medical report does not indicate any short- or long-term consequences of the injuries. I however take judicial notice that teeth are needed for chewing food and the loss of them will no doubt cause some level of discomfort and the discomfort will be exacerbated as an individual ages. More so, for people who have no access to dental care.

Aggravating Factors


  1. I have considered the submissions by counsel and find the following to be aggravating:
    1. While the offender did not use a weapon, he is a male and he punched a woman.
    2. The force of the punch was sufficient to cause three of the victim’s tooth to become loose.
    3. He punched her in front of their children.
    4. This was domestic violence. While separated, he was still her husband and the father of their children.
    5. Assaults causing grievous bodily harm are a common occurrence in all areas of Papua New Guinea. It is a very prevalent offence. Domestic Violence especially intimate partner violence is prevalent in Papua New Guinea.

Mitigating Factors


  1. In mitigation:
    1. The offender has no prior convictions.
    2. He cooperated with police and made early admissions to slapping the victim.
    3. He pleaded guilty early. He was charged on 3 June 2022 and committed on 5 August 2022. His matter was listed in the criminal list for Popondetta in November 2022. He pleaded guilty on 31 October 2022.
    4. He apologized but not to the victim. It is clear from his answers in the Record of Interview and the victim statement to the Probation Officer that the relationship with the victim was not a happy one. Their separation was not amicable. Whilst I find that there is no remorse, I do accept that he does regret his actions, and this is demonstrated by his cooperation with police and early guilty plea.
    5. Further support of his genuine regret is that the complainant reported him to police 17 months later, and he still accepted responsibility.

Antecedent


  1. The offender is 35 years old and is from Gobe Village, Ijivitari, Northern Province. He is unemployed and resides with relatives at Road 9, Sorovi Block, Popondetta.
  2. He has four siblings. His father is alive but very old and his mother is deceased. He has no contact with any of his immediate family members.
  3. He was married to the victim for 11 years. Out of the marriage they have two children aged 11 and 7 years. He lived with the victim and her family at their home in Popondetta. It was not a happy relationship. He separated from his wife in 2020.
  4. The offender completed high school in 2005 at Bareji High School and obtained a Diploma in Business Management at the Asia Pacific International Harvest Ministry in 2020.
  5. He is presently unemployed and relies on the support of his extended family.


Consideration


  1. This offence is a result of a breakdown in communication. The break down happened long before the events of that fateful day at the Church yard. It is evident from the collapse of their marriage. Both may have been responsible for the tension that was created that day, but the offender must bear the ultimate responsibility for resorting to physical violence. Had he exercised some restraint and walked away, he would not be standing in Court today.
  2. I have considered the comparable cases and I am of the view and find that this case is not as serious as those cases.
  3. Considering the forgoing matters, I find that a sentence of 12 months imprisonment is appropriate.
  4. The offender did not spend any time in custody. He shall serve the 12 months imprisonment.
  5. I now ask myself whether suspension is appropriate?
  6. I remind myself of the principles surrounding suspension which include the need for the communities’ views when considering reintegration and that the same factors used to reduce a sentence cannot be used to suspend.[11]
  7. Mr. Mathias Nodu of Puogave Ministries describes the offender as an honest and humble young man. It was after he got married to the victim that he became violent. He described the marriage as unstable and says that the couple quarreled a lot.
  8. Although, the offence is a violent and prevalent offence, the circumstances of this case demonstrate that the offence was out of character and was committed when the offender was placed in an embarrassing situation. Additionally, the actions of the victim reporting the matter to police some 17 months later and her present wish for compensation, is indicative of a wish to have the matter resolved without recourse to imprisonment.
  9. I therefore consider that suspension is appropriate in the present circumstance. It is not an act of leniency but in the interest of the community and promotes personal deterrence, reformation and rehabilitation of the offender: The State v Frank Kagai [1987] PNGLR 320 and Prosecutor v Tardrew[1986] PNGLR 91.
  10. Pursuant to section 19(1)(d) of the Criminal Code, the sentence of 12 months is wholly suspended, and the offender shall enter into his own recognizance without sureties and keep the peace and be of good behaviour for 6 months.
  11. Additionally, pursuant to section 19(1)(d)(ii) of the Criminal Code, the offender shall pay compensation to the victim in the sum of K500.00.


Orders


  1. The Orders of the Court are as follows:
    1. The Offender is sentenced to 12 months imprisonment.
    2. Furthermore, execution of the sentence is pursuant to section 19(1)(d) of the Criminal Code suspended on the offender entering into a recognizance without sureties and keep the peace and be of good behaviour for 6 months and complies with the additional condition that he pay compensation to the victim Esther Maioni in the sum of K500.00.
    3. Cash Bail of K500 is converted to payment of compensation.

The Public Prosecutor: Lawyers the State
The Public Solicitor: Lawyers for the Offender


[1] PGNC 177; N9621 (6 May 2022)
[2] PGNC 351; N9173 (30 July 2021)
[3] PGNC 104; N8845(14 May 2021)
[4] PGNC 426; N8535 (25 June 2020)
[5] PGNC 204; N4781 (31 August 2012)
[6] PGNC 42; N4262 (18 April 2011)
[7] PGNC 143; N3762 (23 September 2009)
[8] PGNC 99; N7816 (12 April 2019)
[9] PGNC 386; N7509 (18 September 2018)
[10] PGNC 308; N6983 (19 June 2017)
[11] Gima v The State [ 2003] SC 730
State v Winston [2003] PGNC 146; N2347
Public Prosecutor v Hale [1998] SC 564
The State v Aruve Waibu [1994] CR1/94(Unreported and Unnumbered)
Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990)
Goli Golu v The State [1979] PNGLR 653
State v Kagai [1987] PNGLR 320
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulio [1980] PNGLR
Public Prosecutor v Sima Kone [1979] PNGLR 294.

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