N2659

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR NO. 235 OF 2000

Between:

THE STATE

And:

james benny songo

Lae: Injia, DCJ
2004: August 27th

Criminal Law – Sentence – Common assault – Assault committed in the course of domestic argument leading to suicide by overdose of chloroquine tablets – Assault committed in the context of incestuous relationship – Incest and suicide killing considered relevant aggravating factors – Mitigating factors - Young First offender, educated man with good career prospects – Whether custodial sentence prescribed for offence should be imposed – State took no position on sentence – Exercise of discretion under s.19(1)(b) – Maximum fine of K2,000.00 in default 6 months imprisonment instead of imprisonment considered appropriate – Criminal Code (Ch. 262), s.19(1)(b) & s.335.

No cases cited in the judgment.

Counsel:
Mr Gangach for the State
Mr Ousi for the Prisoner

27th August 2004

Injia, DCJ: On 30th January 2004, I found the prisoner guilty on the alternative verdict of assaulting his wife, the late Dopone Kosang thereby contravening s.335 of the Criminal Code. I made this decision after I found him not guilty of murder under s.300 of the Criminal Code. I found that on the afternoon of 21st August 1999 at Bumayong Block, the prisoner slapped her on her chin with the back of his hand in the course of an argument over his seeing some other educated women. The slap was deliberately executed with sufficient force to silence her and make her submit to him and accept his explanation on the issue the subject of the argument. The assault made her feel humiliated, depressed and she cried. The story goes that shortly thereafter, she committed suicide by overdosing herself with chloroquine tablets. I also found that she had an incestuous relationship with the prisoner, which was committed in her father’s house where she and the prisoner resided. I found that the assault provided the catalyst for her state of immense emotional depression and feeling of guilt, which led her to commit suicide.

The maximum punishment for assault under s.335 of the Criminal Code is 12 months imprisonment. The Court however has a discretion to impose a lower punishment under any of the different options provided in s.19 of the Criminal Code. One of them, a non-custodial sentence in the form of a release on condition on good behaviour, is sought by the prisoner in the present case, on the following three (3) grounds:

1.	He is an educated man of prior good character with no prior conviction. He comes from a Christian family background. He completed his Building degree course at UNITECH last year and this year he is doing his one (1) year practical training with Angau Hospital to qualify as a tradesman. If he were imprisoned, this would be severe on him. It would also jeopardize his career.

2.	This was a case of simple assault using the bare palm of his hands. He was remorseful from the beginning when his wife died and also in court.

3.	He is prepared to pay K600 compensation to the deceased’s immediate relatives.

The prisoner’s request is supported by the Pre-Sentence report prepared upon my request by the Probation office here in Lae. The report recommends that he be placed on good behaviour bond for 2 years with further conditions for compensation payment. 

In relation to compensation, there is no clear indication in the report as to whether the deceased’s relatives would accept compensation payment. The report does say the deceased’s father has refused to accept an offer by the prisoner’s father has refused to accept an offer by the prisoner’s father to reconcile their differences and make peace with a feast to follow, this coming Christmas. Given the fact that the two families are closely related and in the absence of any evidence on local custom on payment of compensation for deaths in the family caused by members within the family, I do not think it is appropriate to incorporate customary compensation payment as a form of punishment under the Criminal Code (Compensation) Act 1991.

In considering the appropriate punishment in this case, I am faced with the difficult task of balancing the factors which favour the prisoner and those which go against him and then arrive at a punishment which fits the particular circumstances of this offence. On the one hand, the prisoner and his counsel have made a strong case for a non-custodial sentence. I can understand the argument that the purpose of punishment would not be served by imprisoning a young first offender with very good education background and good career prospect for slapping is wife in the course of a domestic argument. On the other hand, I cannot ignore the seriousness of this assault in terms of the circumstances leading up to and the reasons which led to the assault and serious consequences on the victim that followed. The serious nature of the incestuous relationship between the deceased and the prisoner and the fatal consequences in the form of loss of life triggered off by the assault, are relevant considerations on sentence. It is fair to say that the prisoner was partly responsible, in a non-legal sense, for the pain, suffering and state of depression that she went through and eventually claimed her own life, and that the prisoner should not go virtually unpunished by the imposition of a form of punishment which is specifically prescribed for this offence. I am mindful that I am not punishing the prisoner for murder nor incest but these factors must be considered in considering the totality of the circumstances of the offence, in order for me to properly exercise my sentencing discretion, in order to do justice to both parties.

In a way, it is fair to say that the two competing positions evenly balance out on the sentencing scale. In such situation, I would have preferred a firm position taken by the State to tilt the balance in favour of imprisonment. The State Prosecutor has chosen not to address me on sentence, as the State is quite entitled to do, and left it to me to exercise my discretion. In these circumstances, it would not be fair or just of me to imprison the prisoner.

Having said this however, I still consider that the prisoner should be punished in some way for his criminal behaviour that day towards this woman (who was a close relative of his) and the community at large. I consider that a court fine in a substantial amount would serve the purpose punishment. I order that the prisoner be fined the maximum amount of K2,000.00 prescribed under s.19(1)(b) of the Criminal Code to be paid within one (1) year from now, by 23rd September 2005, in default twelve (12) months imprisonment. I further order that his bail money of K300 be converted to part-payment of the fine. I also direct that this matter becomes returnable to the National Court in Lae on 23rd September 2005 at 9:30am for the court to check on the status of compliance of this order. What this order means is that if the prisoner fails to pay the balance of K1,700 by 23rd September, 2005 he will be imprisoned for 12 months.
________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Warner Shand