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State v Timothy [2014] PGNC 56; N5593 (6 March 2014)

N5593

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.707 of 2013

THE STATE

V

ANITA TIMOTHY
Prisoner

Minj : David, J
2013: 8 & 21 November 2013
2014: & 6 March 2014

CRIMINAL LAW – sentence – grievous bodily harm – prisoner is co-wife – multiple knife stab wounds to right upper arm, elbow and wrist – sentence of 3 years in hard labour – pre-trial confinement period deducted –remaining term suspended on terms – Crimianl Code, Section 319.

Cases cited:

Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Avia Aihi v The State (No 3) [1982] PNGLR 92
Ure Hane v the State [1984] PNGLR 105
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
The State v Albina Sinowi (2001) N2175
Edmund Gima and Siune Arnold v The State (2003) SC730
Richard Liri v The State (2007) SC883
The State v Lucy Rusa (2008) N3510
The State v Miriam John (2009) N4128
The State v Lucy Kar (2011) N4719
The State v Rada Mau (2012) N5081

Counsel:

David Kuvi, for the State
Philip Kapi, for the prisoner

SENTENCE

6th March, 2014

1. DAVID, J: The prisoner, Anita Timothy appearing before me from bail on 8 November 2013, pleaded guilty to one count of unlawfully doing grievous bodily harm to the victim, Margaret Gipma and was convicted of the offence under Section 319 of the Criminal Code. The incident occurred at Minj Rot Bung, Minj in the Jiwaka Province on 18 March 2013 at about 4:00 o'clock in the afternoon as a result of an ongoing domestic dispute between the prisoner and the victim who are co-wives to a common husband. On 18 March 2013 at about 09:00 am, the victim went with her 6 month old baby to the Minj Rot Bung market to sell her greens. After getting some money from the sale of her greens, she waited for a bus to go to the Health Centre as the baby was sick. Whilst waiting, the prisoner confronted her and an argument and scuffle eventuated between them. They were stopped by bystanders and both went their own ways. Sometime later during the day, the victim returned from the Health Centre to the Minj Rot Bung with the baby and went into a store. Whilst waiting to be served, the prisoner crept up behind her and stabbed her three times on her right arm with a kitchen knife. The victim fell to the floor and became unconscious. In the course, she dropped the baby and suffered injuries as well. She was later taken to the Minj Health Centre and received medical treatment to her wounds.
   
2. The Medical Report provided by one Fred Wumar, Health Extension Officer and Officer in Charge of the Anglimp South Waghi Heath Services dated 19 March 2013 reports that when the victim presented herself to the Minj Health Centre for treatment, she was suffering from multiple knife stab wounds to her right upper arm, elbow and wrist. She received three knife wounds; the upper arm wound measured 6cm long and 4cm deep; the wound on the elbow measured 9cm long and 10cm deep which indicated that the knife penetrated right through the elbow; and the wound to the wrist measured 5cm long and 3cm deep. Six stitches were inserted into the upper arm wound. Four stitches were inserted into the elbow wound with drainage. Three stitches were inserted into the wrist wound. The report further reports that the multiple stabbings caused a lot of damage to the victim's arm's inner tissues with preliminary prognosis of possibly developing some degree of permanent disability in the use of her right arm in future.
   
3. The Medical Report provided by one Fred Wumar, Health Extension Officer and Officer in Charge of the Anglimp South Waghi Heath Services dated 21 March 2013 reports that when observed, the baby was experiencing some form of convulsion and had a swelling on the back and bruises to the forehead. Initial diagnosis was that the convulsion may have been caused as a result of the baby being dropped.
   
4. The prisoner has no prior convictions.
   
5. On her allocutus, the prisoner pleaded with the Court for mercy and a lenient sentence. She asked the Court to consider in her favour that; she was 7 months pregnant; and she proposed to pay compensation to the victim.
   
6. The prisoner through his counsel applied for a pre-sentence report and means assessment 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. These reports were duly compiled and filed by the Probation Service and I thank Ms. Theresa Puk, Probation Officer for her assistance. I have considered both reports.
   
7. For the pre-sentence report, apart from the prisoner and the victim, a community leader from Kinjubanju village namely Henry Tapi and the common husband of the prisoner's and the victim's namely, Wener Pagna were also interviewed. It is reported, inter alia, that; the victim has demanded that the prisoner pay to her compensation comprising K50,000.00 in cash and twenty pigs and a further K2,870.00 as reimbursement for expenses, failing which the prisoner should be incarcerated; relatives and community members were willing to assist the prisoner pay compensation to the victim; and that the victim as a co-wife is equally to be blamed for ongoing arguments and fights she has had with the prisoner. The prisoner is recommended for probation.
   
8. For the means assessment report, apart from the prisoner, the prisoner's mother namely, Margaret Timothy, the prisoner's sister in-law namely, Nan Kumi, community leader from Kinjubanju village namely Henry Tapi and the common husband of the prisoner's and the victim's namely, Wener Pagna were also interviewed. It is reported that the prisoner is a subsistence farmer and depends very much on her husband for her daily needs. She does not have any bank account or other savings or valuable assets, but has K1,000.00 and a pig which she can contribute towards paying compensation to the victim. Immediate relatives, a community leader from Kinjubanju village and the prisoner's husband are willing to assist with the payment of compensation comprising K4,700.00 and 3 pigs and particulars of contributions are; Wener Pagna K500.00; Margaret Timothy, K200.00; Nan Kumi, a pig and community members, K3,000.00 and a pig. It is recommended that compensation be paid within a period of three months to be supervised by the Mt. Hagen Probation Service.
   
9. A document entitled Victim's Impact Statement was handed up to the Court by Mr. Kapi during the course of his submissions without serious objection from the prosecution. I have considered the matters raised in the document, most of which are covered by the pre-sentence report and means assessment report. Briefly, the document details how the victim's life has been adversely affected physically, emotionally and financially since the prisoner assaulted her. The victim demands compensation comprising K5,000.00 cash and 10 pigs which is less than the total amount demanded by the victim as is reported in the pre-sentence report.
   
10. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for a term not exceeding 7 years.
    
11. The maximum penalty is usually reserved for the worst sorts of cases of unlawful doing grievous bodily harm: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No 3) [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105.
    

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

13. The prisoner is originally from Kinjubanju village, Minj in the Jiwaka Province and is now aged 19 years and subsistence farmer. She currently resides at Kupral in the Minj District. She is the third wife of common husband Wener Pagna who is a Primary School teacher and they have 2 adopted children aged 12 and 14 years respectively. Both children are currently attending elementary school. She was 7 months pregnant at the time of conviction in November 2013 so I assume that she has already delivered her own biological child. The victim is the second wife of their common husband. Both of her parents are from Jiwaka Province and are still alive. She is the last born of six siblings in her family and they are all married with children. She has attained Grade 10 formal education from the Minj Secondary School. She is a member of the Seventh Day Adventist denomination. The prisoner voluntarily surrendered to the police on 19 March 2013 at Kinjubanju village and was arrested, detained and charged with the offence of intending to do grievous bodily harm under Section 315(a)(b) of the Code. She was admitted to bail in the first week of April 2013. I compute the prisoner's period of pre-trial confinement to be about 14 days. She was committed to stand trial in the National Court on 26 June 2013.

14. In mitigation, it was submitted that:

1. the prisoner pleaded guilty;
2. the prisoner was a first offender;
3. there was no pre-planning;
4. there was de facto provocation;
5. the prisoner was willing to pay compensation;
6. until the incident, the prisoner had a good background.
   

15. The Court was urged to impose a sentence of between 2 to 3 years in the light of the particular circumstances of this case as it was submitted that this case did not fall within the worst category of the offence notwithstanding that a dangerous weapon was used in the assault. It was further submitted that a non-custodial sentence be imposed with conditions including an order for compensation of about K2,000.00 cash and a pig, there being no cogent evidence produced of any residual disability suffered by the victim.

16. In aggravation, the State submitted that:

1. a kitchen knife was used;
2. the victim suffered multiple wounds to her right hand;
3. the victim was assaulted whilst carrying a young baby who was dropped on to the floor and suffered injuries to the back and forehead; and
4. the offence involving co-wives was prevalent within the Highlands region.
   

17. Mr. Kuvi submitted that the circumstances of the present case warranted the imposition of a sentence of at least 3 years imprisonment, but with no objection to the question of suspension so long as it was made on terms including the making of an appropriate compensation order under the Criminal Law (Compensation) Act 1991.

18. The factors which mitigate the offence are:

1. the prisoner pleaded guilty;
2. the prisoner was the sole attacker;
3. the prisoner had no prior convictions and was a first offender;
4. there was presence of de-facto provocation, the incident arising between co-wives who had a history of continuous domestic disputes and fights between themselves;
5. the prisoner voluntarily surrendered to the police;
6. the prisoner co-operated with the police;
7. until the offence, the prisoner was of previous good character;
8. the prisoner and the victim remained co-wives of their common husband, Wener Pagna;
9. welfare of the prisoner's new born baby (with caution as per the principle in Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997).
   

19. The factors which aggravate the offence are:

1. a kitchen knife was used;
2. the victim suffered multiple wounds to her right hand;
3. the victim was assaulted whilst carrying a young baby who was dropped on to the floor and suffered injuries to the back and forehead;
4. there was some pre-planning; and
5. the offence involving co-wives was prevalent within the Highlands region.
   

20. There has been no expression of remorse and no compensation was paid or attempted. These are neutral factors.

21. As can be seen above, the factors in mitigation outweigh those in aggravation.

22. I am satisfied that the present case does not fall within the worst category of unlawful doing grievous bodily harm cases.

23. In considering an appropriate sentence for the prisoner, I have considered the following cases.

24. In The State v Albina Sinowi (2001) N2175, the prisoner pleaded guilty to one count of unlawfully assaulting a co-wife under Section 340 of the Code. The victim was the second wife of their common husband. The prescribed maximum penalty for that offence is imprisonment for a term not exceeding 3 years. That was a case where the victim would leave her 5 children including a baby with the prisoner following an argument with the husband. On each occasion she left no food for the children. In her absence, the prisoner took on the responsibility of feeding the children and family including nursing the baby. The husband failed to stop the victim from such conduct. Upon the victim's return from her village after the third occasion, the prisoner hit the victim once with a piece of iron on her left arm. That caused a fracture to the victim's left ulna. The factors taken into account in favour of the prisoner when imposing a 6 months suspended sentence were; the Prisoner's guilty plea; the Prisoner was a first time offender; customary compensation of K1000.00 was paid to the victim; the Prisoner expressed genuine remorse; and since the commission of the offence, the victim and Prisoner were living together in one house without any difficulty.

25. In The State v Lucy Rusa (2008) N3510, the prisoner and the victim were co-wives. On the date the offence was committed, the victim was digging kaukau in her garden with two other women when the prisoner walked past them on her way to the house. An argument developed between the prisoner and the victim and eventually ended up in a fight. As they were wrestling each other, the prisoner pulled out a knife and chopped off two of the victim's toes on her left leg. The victim fell unconscious and was taken to the hospital where she was appropriately treated. On a guilty plea to a charge of unlawful grievous bodily harm, a custodial sentence of two years imprisonment in hard labour was imposed.

26. In The State v Miriam John (2009) N4128, the prisoner and victim were co-wives. On the date the offence was committed, the prisoner met the victim while she was on her way to the antenatal clinic at the Chuave Health Centre. The victim was seven months pregnant at the time. The prisoner approached her and punched her several times. The punches were directed to the victim's face and abdomen. The victim suffered serious internal injuries as a result. She was in agonising pain and was taken to the Chuave Health Centre for treatment. The pain continued and she lost a lot of blood. Subsequently, the victim was referred to the Kundiawa General Hospital where she delivered a premature macerated dead female baby. On one occasion whilst on her way to attend a call-over, she was seriously assaulted by her husband and his brothers for not paying compensation. A medical report confirmed the nature and extent of the injuries she sustained. On a guilty plea to a charge of unlawful grievous bodily harm, I considered imposing a sentence of six years, but since jungle justice had been inflicted upon the prisoner, I imposed a sentence of five years, three years of which was suspended on terms.

27. In The State v Lucy Kar (2011) N4719, the prisoner and the victim were co-wives. The prisoner was the second wife. Their common husband was involved in a fight with his first wife, the victim. For some reason, the prisoner stepped in and attacked the victim from the back. As the victim turned around to see who was attacking her, the prisoner bit her by the nose resulting in the nose being bitten off. The victim was rushed to the Tinsley District Hospital and treated. The victim suffered a permanent disfigurement to her nose. The prisoner paid compensation to the victim consisting of K350.00 in cash and three pigs to the value of K1,000.00. On a guilty plea to a charge of unlawful doing grievous bodily harm, I imposed a sentence of three years less the period of pre-trial confinement of 6 weeks and suspended the balance of the term on terms including the payment of a fine of K300.00 which was offset by bail monies.

28. In The State v Rada Mau (2012) N5081, the prisoner and the victim were co-wives to a common husband. An argument between the 2 co-wives developed into a fight. During the course of the fight, the prisoner bit the tip of the victim's left index finger completely amputating the tip of the finger and the finger nail. The prisoner pleaded guilty to unlawfully doing grievous bodily harm to her co-wife. A sentence of 12 months imprisonment was imposed which was suspended in its entirety subject to strict conditions including an order for the prisoner to pay K500.00 compensation to the victim within 14 days of sentence.

29. What is the appropriate sentence for the prisoner? Taking into account all the circumstances of the present case and guided by the aforementioned comparable sentences, I think the appropriate sentence for the prisoner is 3 years imprisonment in hard labour.

30. I will deduct from the head sentence 14 days for pre-trial confinement period leaving the prisoner 2 years, 11 months and 14 days (the remaining term) to serve.

31. The prisoner will serve the remaining term at the Barawagi Correctional Institution.

32. 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.

33. In 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.
   

34. In 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.

35. 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.

36. I have mentioned already that the pre-sentence report recommends that the prisoner be placed on probation. In the exercise of my sentencing discretion under Section 19 of the Code, I will suspend the remaining term in its entirety on terms which I will impose shortly. I consider that suspension will promote the personal deterrence, reformation or rehabilitation of the prisoner and having considered the means and financial circumstances of the offender as is reported in the pre-sentence report and the means assessment report, I also propose to make a compensation order within the parameters of Section 5 of the Criminal Law (Compensation) Act 1991.

37. The following conditions shall apply:

1. The prisoner shall contact the Mt. Hagen Provincial Probation Officer prior to or by 1:30 pm on Thursday, 13 March 2014.
2. The prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him or her to do so.
3. The prisoner shall enter into her own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.
4. The prisoner shall not relocate from Kupral village, Minj in the Jiwaka 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.
5. Except to comply with reporting conditions, the prisoner shall not leave the Jiwaka Province without the permission of the Court during the period of suspension.
6. The prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter her home during reasonable hours.
7. During the period of suspension, the prisoner shall provide free community service of 4 hours per day every government fortnight Friday at the Minj Police Station or at such other institution of the State or the Jiwaka Provincial Government located within Minj 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.
8. The prisoner shall pay compensation to the victim comprising K2,000.00 cash and a pig valued at not less than K1,000.00 by or before 2:00 pm on Thursday, 5th June 2014.
   

38. In the event that the prisoner breaches any of the above terms, then the prisoner's probation will be breached and she will be arrested and sent to gaol at the Barawagi Correctional Institution to serve the remaining term which I have suspended.

39. The prisoner is at liberty to apply for a review of any of the above terms including the lifting of any of them provided that there is substantial compliance.

40. Bail monies are converted and shall be applied towards part-payment of the compensation order.

41. A warrant will issue for the execution of this sentence.

Sentenced accordingly.
__________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the prisoner