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State v Minimbi [2013] PGNC 266; N5367 (19 June 2013)

N5367

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.599 of 2012

BETWEEN:

THE STATE

AND:

WAN MINIMBI
Prisoner

Mt. Hagen: David, J
2013: 17 May, 18 & 19 June

CRIMINAL LAW – sentence – grievous bodily harm – prisoner first wife of victim – victim assaulted with bush knife – multiple wounds - fourth digit of the victim's right hand amputated at the middle phalangeal joint and deep laceration across right hand palm through to third digit - deep laceration across the victim's left hand palm through to first and second digits - left thumb immobile at initial diagnosis - deep laceration to left Achilles tendon - medical treatment administered over a period of about three months – mitigating and aggravating factors considered – guilty plea – offence committed in domestic setting – de facto provocation – factors in mitigation outweigh those in aggravation - sentence of 4 years in hard labour – pre-trial confinement period deducted – remaining term suspended – Criminal Code, Sections 19 and 319.

Cases cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The Public Prosecutor v Vangu'u Ame [1983] PNGLR 424
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Lawrence Simbe v The State [1994] PNGLR 38
Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997
Public Prosecutor v Don Hale (1998) SC564
The State v Henry Idab (2001) N2172
Edmund Gima and Siune Arnold v The State (2003) SC730
Richard Liri v The State (2007) SC883
The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen
The State v Sam Piapin (2009) N3585
The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa
The State v Michael Tangip (2012) N4782

Counsel:

Joe Kesan & Philip Tendui, for the State
Charles Kos, for the prisoner

SENTENCE

1. DAVID, J: On Friday, 17 May 2013, the prisoner, appearing before me from bail, was charged with one count of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code, the State alleging that on 20 September 2011 at Mt. Hagen, Western Highlands Province in Papua New Guinea, she unlawfully did grievous bodily harm to one Agua Waiya, (the victim). She pleaded guilty to the charge which I accepted, the Record of Interview containing admissions, and I convicted her accordingly.
   
2. Mr. Kos for the prisoner applied for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen branch which I granted and submissions on sentence were deferred pending the filing of the report. I fixed the matter to return before me on Monday, 10 June 2013 at 9:30 am for submissions on sentence. The report was duly compiled and filed and I am grateful to Ms. Theresa Puk, Probation Officer for her assistance.
   
3. The prisoner was granted bail after conviction with similar conditions as those applying before conviction.
   
4. The return date fell on the Queens Birthday public holiday so the case was brought before me on Wednesday, 12 June 2013 at 9:30 am. The prisoner did not appear so the matter was adjourned to Thursday, 13 June 2013 at 9:30 am. Still the prisoner did not appear so the case was further adjourned to Monday, 17 June 2013. The prisoner having again failed to appear, I directed that a bench warrant be issued to arrest her and bring her before the Court, but adjourned the case to Tuesday, 18 June 2013 at 9:30 am giving her another opportunity to present herself voluntarily to the Court before submissions on sentence were made. The prisoner still did not appear, so I proceeded to hear submissions on sentence in absentia and reserved to pass sentence on the prisoner this afternoon. This is the sentence of the Court.
   
5. I had proposed to invoke Section 571 of the Code to sentence the prisoner in absentia based on the legal proposition that she had by her conduct inferentially consented to the continuation of the proceedings in her absence, but the prisoner turned up before the Court convened to deliver sentence. As a consequence, I proceeded to direct that the bench warrant I had issued earlier this week be revoked.
   
6. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.
   
7. The maximum penalty is usually reserved for the worst sort of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
   

8. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

9. The short facts presented to the Court for purposes of arraignment to which the prisoner pleaded were these. She is forty six years old from Kuk village located within the Baisu area outside of Mt. Hagen in the Western Highlands Province. She is the first wife of the victim husband in a polygamous relationship. On Tuesday, 20 September 2011 at about 8:00 o'clock in the morning, the prisoner was at the Bank South Pacific, Mt. Hagen ATM. Whilst there, she saw the victim give her bank card to his second wife to withdraw cash from the bank. Angered by what she saw, she took out a bush knife from her bag and attacked the victim. The first swing struck the victim on his left leg severing the Achilles tendon. The second swing which was aimed at the victim's head struck the victim on the head, but the force of the swing was reduced when the victim caught the blade with his hands amputating the victim's fourth digit of his right hand as well as causing deep lacerations to both his right and left palms and other fingers. Further attacks by the prisoner were stopped when a police unit parked nearby came to the victim's rescue and the prisoner was taken to the Police Station for questioning. At the Police Station, the prisoner was questioned, arrested and charged. The victim was rushed to the Mt. Hagen General Hospital for treatment. He was later transferred to the St. Joseph Rural Hospital Mingende, Kundiawa in the Simbu Province for further treatment.

10. The Medical Report issued by Dr. Gabriel S. Yohang of the St. Joseph Rural Hospital Mingende dated 15 October 2011 reports that the victim aged about 50 years had multiple knife wounds including a deep laceration to his left Achilles tendon. The fourth digit of the victim's right hand was amputated at the middle phalangeal joint and a deep laceration across the palm of his right hand through to his third digit. There was a deep laceration across the victim's left palm which continued through to the first and second digits. The victim was unable to move his left thumb at the initial diagnosis. It appears from the Medical Report that medical treatment administered to the victim over a period of about three months included repairing of the Achilles tendon.

11. The prisoner has no prior convictions.

12. On her allocutus, the prisoner confirmed committing the offence. She said sorry to the State for breaking the law and to the victim who was now deceased. She asked the Court to consider the welfare or well-being of her three children mainly the two who are currently furthering their education in two institutions in the country. She said her daughter was currently doing her first year at the University of Papua New Guinea and her son was currently attending the Don Bosco Technical Institute at Barawagi in the Simbu Province doing Grade 11. The other child dropped out from school.

13. On her allocutus, the prisoner also described the events leading up to the incident. She said she married the victim in 1983 and have three children. The victim found employment with the LNG Project in 2009. Whilst away at work, he got a new wife and never visited her and the children or remitted money for their use. They had to fend for themselves in his absence. She found out about the victim's new relationship in 2010. She went all the way to Tari and then to Komo in the Hela Province and managed to locate the victim with the assistance of police at Hides No.4, Nogoli. When she told the victim the difficulties she was facing including the upkeep and payment of school fees for the children, he told her to return to Mt. Hagen and assured her that he would visit her and the children during the next field-break on a date he confirmed. He did not keep his word, but went to his new wife's village instead. She later got an order against the victim concerning payment of school fees and she went to Hides No. 4 and had it served on the victim with the assistance of police. The victim did not honour the order. When she heard that the victim was in town on a further field break and could go to the Bank South Pacific ATMs to withdraw funds, she went to the ATMs with her daughter and waited. That was when she saw the victim hand his bank card to his new wife to do a withdrawal at the ATMs and she attacked him.

14. On her allocutus, she also said that both she and the victim paid compensation to each other. She paid him K1,200.00 while he paid her K1,000.00. A reconciliation ceremony was proposed to be conducted in December 2012 during the victim's next field break, but it did not eventuate because the victim had died by then.

15. A copy of a Medical Certificate of Death issued by the St. Joseph Rural Hospital Mingende and handed up at the hearing yesterday by Mr. Kos by consent of the State confirms that the victim died of cardiac arrest due to or as a consequence of hypertension on or about 14 December 2012.

16. The pre-sentence report, which I have considered reports that the prisoner is a suitable candidate for probation supervision and therefore recommends that a non-custodial sentence under probation supervision may be appropriate. The reasons given are; firstly, the prisoner is a subsistence farmer aged 49 years and has three unemployed children; secondly, the prisoner has shown deep remorse for committing the offence; and thirdly, reconciliation between the parties took place prior to the death of the victim when both parties exchanged payments of compensation (K1,200.00 paid by the prisoner to the victim and K1,000.00 paid by the victim to the prisoner) witnessed by Police Public Relations Officers, Peace & Good Order Committee, the prisoner's village councillor and relatives from both parties. The report also reports that the prisoner is financially incapable of meeting any order for fine or additional compensation to be paid to the victim's relatives as her relatives have already assisted her with the payment of K1,200.00.

17. The prisoner is from Kuk village in the Baisu area outside Mt. Hagen in the Western Highlands Province. She resides in a three bedroom permanent house. She was aged 46 years when she committed the offence and therefore would be aged about 48 years by now. She is a homemaker and subsistence farmer respectively. Her parents are deceased. There are nine siblings in her family consisting of five males and four females and all are married with children and grand children. She was married to the victim who was from Kerowagi in the Simbu Province and they had three children from their marriage, two females and a male. The victim died on or about 14 December 2012 from cardiac arrest due to hypertension. Of the two daughters, one is now married with a child. The other daughter currently attends the University of PNG doing first year business studies. The male child completed high school at the Kerowagi High School and currently attends the Don Bosco Technical Institute at Barawagi in the Simbu Province doing Grade 11. She attained Grade 3 formal education from the Mun Primary School, Banz. She is a baptized member of the Kuk Seventh Day Adventist Church. The prisoner was apprehended on 20 September 2011 immediately after committing the offence and was discharged from lawful custody on K1,000.00 cash bail on 7 November 2011. She was therefore in custody for 1 month, 2 weeks and 4 days. She was committed to stand trial in the National Court on 10 May 2012.

18. In mitigation, Mr. Kos for the prisoner submitted that:

1. the prisoner pleaded guilty which demonstrated her acceptance of criminal responsibility;
   
2. the prisoner was a first offender;
   
3. the prisoner cooperated with the police in their investigations demonstrated by the admissions she made in the Record of Interview;
   
4. there was presence of de-facto provocation because the victim left the prisoner and her children to marry a second wife leaving them with no means of support;
   
5. the prisoner paid compensation to the victim in the sum of K1,200.00 cash;
   
6. the prisoner expressed genuine remorse and contrition as was demonstrated by the payment of compensation by the prisoner;
   
7. reconciliation was achieved between the parties when they exchanged compensation (K1,000.00 paid to the prisoner by the victim); and
   
8. the offence was committed within a domestic setting.
   

19. Mr. Kos referred me to two cases by way of comparison namely, The State v Sam Piapin (2009) N3585 and The State v Steven Dua, CR. No.1525 of 2006, Unreported & Unnumbered Judgment of David, J delivered on 16 August 2007 at Mt. Hagen.

20. In The State v Sam Piapin, the prisoner and the victim were close neighbours . Early one morning, a dispute arose between them over the land along the boundary they shared. At the time, the prisoner had a spade and swung it at the victim. In order to protect herself, the victim put her arms up, but because the spade was swung with so much force, it hit the victim's left arm in particular the ring finger which got severed. On a guilty plea to a charge of grievous bodily harm, I sentenced the prisoner to three years imprisonment IHL less time spent in custody. Two years of the term imposed was suspended on terms including doing free community work during the period of suspension.

21. In The State v Steven Dua, conviction for committing the offence under consideration was obtained on a plea of guilty. There, the prisoner had a history of violence towards the victim who was his wife. The prisoner and the victim were aged 46 years and about 40 years respectively. The couple had been married for a long time. They had 7 children whose ages at the time of the crime ranged from seven (7) years to 23 years and the eldest was married with 3 children. The victim left the matrimonial home more than 7 months prior to the commission of the crime at the behest of the couple's eldest son and village leaders because she was being ill-treated, harassed and assaulted time and again by the prisoner who suspected her of committing adultery or cheating on him. Two weeks prior to the commission of the crime, the prisoner went on a business trip. On his way back, he stopped over at a village next to the victim's. The prisoner later met the victim at a location and had an argument with her. He then arranged for a village court type sitting to hear his claim for compensation against the victim for injuries he alleged were previously inflicted upon him by the victim, but was unsuccessful. His intention was actually to force the victim to return with him. The prisoner over-nighted at the neighbouring village and the next day, armed with a bush knife, he proceeded to the victim's village where he confronted her. He assaulted the victim with the bush knife causing serious cuts to both of her legs. Her left leg was also fractured. I sentenced the prisoner to 3 years imprisonment in hard labour less time spent in custody leaving one year, nine months and eight days to serve. One year and six months of the remaining term was suspended on terms.

22. Mr. Kos suggested that a sentence of 4 years wholly suspended on terms was appropriate.

23. Mr. Tengdui for the State submitted that the aggravating factors present in this case are:

1. multiple wounds were inflicted upon the victim including the severing of a finger and the victim's mobility for a period of time was affected due to the slashing of the Achilles tendon on the his left leg;
2. the attack was vicious;
3. a bush knife, being a an offensive weapon was used;
4. there was pre-planning; and
5. the offence was prevalent.
   

24. Mr. Tengdui drew my attention to The State v Ali Kawa Job, CR 1189 of 2006, Unreported & Unnumbered Judgment of David J delivered on 15 December 2009 at Kundiawa and The State v Michael Tangip (2012) N4782 by way of comparison.

25. In The State v Ali Kawa Job, conviction for the offence under consideration was attained on a plea of guilty. In that case, the prisoner was the victim's husband. While having dinner, they had an argument over the victim failing to cook kaukau for their pigs. The prisoner got a bush knife and chopped the victim on her right leg above the heel and below the calf. Despite receiving treatment at a hospital, the wound did not heal and the lower part of the leg had to be amputated. I sentenced the prisoner to five years imprisonment in hard labour less time already spent in custody. Four years of the remaining term was suspended on terms including orders for free community service and payment of additional compensation.

26. In The State v Michael Tangip, conviction for the offence under consideration was attained on a plea of guilty. The prisoner, a lay pastor assisted by two accomplices attacked the female victim with a bush knife slashing her right leg including the knee a number of times on suspicion that she was a sorceress and she was responsible for the death of his daughter. The injured leg suffered 75% deformity and her mobility to do household or domestic chores was greatly restricted as she would use crutches to walk for the rest of her life and long term physiotherapy was required. I sentenced the prisoner to five years imprisonment and suspended the remaining term after deducting the pre-sentence confinement period on terms including orders for a fine of K1,000.00 and compensation of K5,000.00.

27. Mr. Tengdui suggested that a head sentence between 4 and 5 years was appropriate. If any part of the sentence was to be suspended, the Court could do so in the exercise of its sentencing discretion, it was further submitted.

28. The factors which mitigate the offence are:

1. the prisoner pleaded guilty which demonstrated her acceptance of criminal responsibility;
2. the prisoner was the sole attacker;
3. the prisoner had no prior convictions and was a first offender;
4. the prisoner cooperated with the police in their investigations demonstrated by the admissions she made in the Record of Interview;
5. there was presence of de-facto provocation because the victim left the prisoner and her children to marry a second wife leaving them with no means of support;
6. the prisoner paid compensation to the victim in the sum of K1,200.00 cash;
7. the prisoner expressed genuine remorse and contrition as was demonstrated by the payment of compensation by the prisoner;
8. reconciliation was achieved between the prisoner and the victim when they exchanged compensation (K1,000.00 paid to the prisoner by the victim);
9. the offence was committed within a domestic setting; and
10. until the offence, the prisoner was of good character.
    

29. I have considered the welfare of the school going children, but I have treated it with caution in the light of the principles in The Public Prosecutor v Vangu'u Ame [1983] PNGLR 424 and Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997. In The Public Prosecutor v Vangu'u Ame, the Supreme Court said that the effect a custodial sentence might have on the welfare of children should not be allowed to outweigh the seriousness of the offence. In Ivoro Kaumin Lupu v The State, the Supreme Court said that whilst the welfare of loved ones such as wives, children and parents is an important mitigating factor, it was becoming a lame excuse and should be treated with caution because an offender should think about the consequences of his or her conduct before setting out to commit a serious offence.

30. The factors which aggravate the offence are:

1. multiple serious wounds were inflicted upon the victim;
2. the attack was vicious;
3. a bush knife, being a an offensive weapon was used;
4. there was pre-planning;
5. the offence was prevalent; and

6. the prisoner is an adult woman living at Kuk village within the Baisu area where the Baisu Correctional Institution is located and has some form of education to tell what is right from wrong - lack of sophistication in her case is also not an excuse.

31. Factors in mitigation outweigh those in aggravation. I am satisfied therefore that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases.

32. In considering an appropriate sentence for the prisoner, I have also considered The State v Henry Idab (2001) N2172. In that case, conviction for committing the offence under consideration was obtained on a plea of guilty. The prisoner together with his brothers were armed with bush knives and stones and attacked the victim and others who were alleged to have verbally abused their mother near a river. The victim was a village peace officer at the time. The victim suffered serious injuries to both his hands resulting in an estimated 85% permanent disability. The Court considered the case to be of the worst type for the offence given the nature of the injuries suffered by the victim, that it was a gang attack and that the victim was a village peace officer. The Court imposed a sentence of five years imprisonment in hard labour less time spent in custody and suspended two years with strict conditions.

33. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case, I think the appropriate sentence for the prisoner is 4 years imprisonment in hard labour.

34. I will deduct from the head sentence 1 month, 2 weeks and 4 days for pre-trial confinement period leaving the prisoner 3 years, 10 months and 10 days (the remaining term) to serve.

35. The prisoner will serve the remaining term at the Baisu Correctional Institution.

36. Should I suspend the whole or any part of the remaining term? The power to suspend a sentence conferred by Section 19(1)(d) of the Code is discretionary and should be exercised upon some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. Some of these principles are set out in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 and The State v Frank Kagai [1987] PNGLR 320 which I have considered.

37. In Public Prosecutor v William Bruce Tardrew, the Supreme Court held that suspension of part of a sentence may be appropriate in three broad categories which are not exhaustive and these are:

1. where suspension will promote the personal deterrence, reformation or rehabilitation of the offender;
2. where suspension will promote the repayment or restitution of stolen money or goods;
3. where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of bad physical or mental health.
   

38. In The State v Frank Kagai, the court held that persons charged with serious offences may be dealt with by way of suspended sentence by reason of good character and where the court is of the view that there will be no re-offending and/or that the particular individual will be positively damaged by incarceration.

39. The Supreme Court has also held that there can be no suspension of sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. In Edmund Gima and Siune Arnold, the Supreme Court also observed that a sentence cannot be suspended without imposing any condition because a suspension of either the whole or any part of it is not an exercise of discretion in leniency, but is a form of punishment. Hence, conditions must be imposed to demonstrate that it is an alternative to punishment within our criminal justice system in appropriate cases.

40. I have mentioned already that the pre-sentence report speaks favourably of the prisoner. The report recommends a non-custodial sentence under probation supervision which I accept. I will suspend the whole of the remaining term on terms which I will impose shortly. I consider that suspension will promote the personal deterrence, reformation or rehabilitation of the prisoner.

41. The following conditions shall apply:

1. The prisoner shall pay a fine of K1,000.00. Bail monies of K1,000.00 shall be converted and applied towards the payment of the fine.
2. The prisoner shall contact the Mt. Hagen Provincial Probation Officer within 24 hours of sentence.
3. The prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him or her to do so.
4. The prisoner shall enter into her own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.
5. The prisoner shall not change her residential address at Kuk village, Baisu in the Western Highlands Province unless she has given the Mt. Hagen Provincial Probation Officer reasonable notice of her intention to do so and the reason for the proposed change.
6. The prisoner shall not leave the Western Highlands Province without the permission of the Court during the period of suspension.
7. The prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter her home during reasonable hours.
8. During the period of suspension, the prisoner shall provide free community service of 4 hours per day every government fortnight Friday at the Mt. Hagen Police Station or at such other institution of the State or the Western Highlands Provincial Government located within the Western Highlands Province requiring the services of the prisoner to be determined and supervised by the Mt. Hagen Provincial Probation Officer. The prisoner must obey all instructions from the heads of the institutions where her services will be provided in consultation with the Mt. Hagen Provincial Probation Officer.
9. The prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there is substantial compliance.
   

42. In the event that any one of the above conditions is not complied with, then the prisoner's probation will be breached and she will be arrested and sent to gaol at the Baisu Correctional Institution to serve the remaining term which I have suspended.

43. A warrant of commitment shall issue in the above terms forthwith.

Sentenced accordingly.

__________________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner