Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Jerry [2013] PGNC 315; N5555 (19 July 2013)

N5555

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 197 of 2013

THE STATE

V

VERO JERRY

Maprik: Geita AJ
2013: July 18, 19

CRIMINAL LAW – Guilty Plea - Causing grievous bodily harm – Intention to cause grievous bodily harm – Domestic setting – Underlying causes leading up to the commission of the crime taken into account – Plea of Guilty – 2 Years imprisonment wholly suspended with conditions.

CRIMINAL LAW – Criminal Code Section 319

Cases cited:

State v Anna Eddie, CR 508 of 2011-3 July 2013. (Unreported)
State v Yatime Korogula CR 59 of 2007
State v Joe Sekin (2006) N4479

Counsel:
Mr. Francis Popeu, for the State
Mr. Francis Fingu, for the accused

DECISION ON SENTENCE

19 July, 2013

1. GEITA AJ: The prisoner pleaded guilty to a charge that she on December 10 2010, at Guarip village Maprik, East Sepik Province with intent caused grievous bodily harm to Maria Kandi. She was indicted under s.319 of the Criminal Code Act, as amended.

2. These are the brief facts. On Friday 10 December between 3pm and 4pm at Guarip village the prisoner whilst working in her garden was told by Avi that the victim and her husband were having sexual intercourse with the victim in her house. She armed herself with a bush knife, and went looking for the victim. Upon seeing her husband and the victim sitting together on the veranda, approached them and cut the victim on the left side of her neck and face, inflicting serious bodily injury.

3. The prisoner is about 25 years old and is married to Jerry Kana and both have three children. She is an uneducated villager. In her allocutus, she told the Court that she was sorry for what she had done to the victim and asked for leniency: Saying that she has three small children with no one to take care of them as her husband no longer lives with them.

4. Mr Fingu submitted that he was unable to obtain a Pre Sentence Report due to the non availability of a Probation Officer in the District. He submitted that the prisoner and the victim share the same husband giving rise to this problem. The victim's version of her relationship with the prisoner's husband was that of mother/step son relationship. He further submitted that the Court should also take into several mitigating factors in favour of the accused in determining the appropriate sentence. They include early admission of guilt during the record of interview, guilty plea, genuine remorse shown, no prior convictions, and the presence of very strong provocation in the non legal sence. In the final analysis, he submitted that a head sentence of three years (3) be considered with suspended sentence as appropriate in the circumstances of this case.

5. In support of his submissions he referred me to three previous cases which dealt with grievous bodily harm under section 219 of the Criminal Code. They are summarised hereunder:

6. I take judicial notice of the appropriateness of the cases referred to me in particular the case of State v Anna Eddie which is somewhat analogous to this case.

7. Mr Popeu for the State submitted that this crime was serious and called for a custodial sentence: the use of knives which are lethal weapons to solve problems was becoming too common. He submitted that this offence is different in nature and attracts a maximum sentence of up to seven (7) years imprisonment. He conceded with defence submissions that a head sentence of three years be considered under the circumstances.

8. In determining what the appropriate sentence under the circumstances is, I am greatly indebted to the sentiments echoed by my brother Justice Kirriwom in his most recent unpublished case of The State v Anna Eddie, 3 July 2013 Wewak. This case involves the prisoner having marital problems with her husband resulting in the husband marrying another woman from Kimbe and trying to bring her into their marital home as his second wife. The prisoner, a typical village woman without the benefit of formal schooling opposed the move that made life unbearable in the marriage. The unease culminated into the prisoner cutting the husband on his arm, severing five tendons besides the fractured radius.

9. Notwithstanding the severity of the wounds and this crime bordering on the worst case of unlawful wounding His Honour had this to say in considering what the appropriate sentence should be and I quote:

"I look at this woman's predicament not purely from the perspective of her criminal or offending behaviour. Often courts jump quickly to the conclusion that an offender deserves punishment by just looking at the nature of the criminal act without appreciating the underlying causes that led to the commission of the offence complained off. And particularly so in domestic situations where one spouse is forced by unforeseen circumstances in the marriage that marginalized the offending spouse for years or decades of suffering when the other party chose not to honour their matrimonial vows."

10. That maximum penalty is prescribed because the crime involves a deliberate intention to cause someone grievous bodily harm. However in this case there are exceptional circumstances, notable of which is the prisoner, an uneducated village woman, deserted by the husband leaving her with three fairly young children in preference to the victim. I also agree with the sentiments expressed by Kirriwon J in his judgment and adopt the gist of his consideration in this case now before me. The predicaments faced by the prisoner in this case are analogous to those in Anna Eddie case, despite differing factual situations.

11. In my view I do not consider this crime to be of the worst type and will not impose the maximum or a custodial sentence. Taking into account the sentiments expressed above including all mitigating factors, I consider a shorter sentence to be appropriate under the circumstances.

12. In the exercise of my discretion under section 19 of the Criminal Code Act, I sentence you to two years which is wholly suspended with the following condition: You must keep the peace and be of good behaviour towards the victim, failing which you will be arrested to serve the full term of the order. You are ordered to pay K200 to the victim from your K400 bail. The balance will be refunded to you.

Ordered accordingly
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused