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State v Steven [2020] PGNC 495; N9222 (10 December 2020)

N9222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 762 OF 2020

THE STATE

V

GIGIMESI STEVEN

Alotau: Toliken, J
2020: 15^th September, 09^th, 10^th December

CRIMINAL LAW – Sentence – Guilty Plea – Grievous bodily harm – Considerations – Domestic setting – Use of kitchen knife – Two stab wounds – One to Chest – Prevalence of offence – Non-legal provocation – Extra-marital affair by victim with prisoner’s partner – Nil priors – Prior good character – Co-operation with police – Not a worst case – Appropriate sentence – 3 years – Criminal Code Ch. 262, s 319.

SENTENCE – Suspension – Whether appropriate – Exercise of discretion - Unfavourable pre-sentence report – No impediment to exercise of discretion to suspend sentence – Appropriate case for suspension – Sentence wholly suspended on condition – Criminal Code Ch. 262, s 19 (1)(d).

Cases Cited

Aihi -v- The State (No.3) [1982] PNGLR 92
Golu -v- The State [1979] PNGLR 653
Public Prosecutor -v- Don Hale (1998) SC 564)
The State -v- Timoria (2017) N6745
The State -v- Timothy (2014) N5593
The State -v- Sheekiot (2011) N4454
The State -v- Konos (2010) N4157
The State -v- Salome Nikole; CR No. 1223 of 2019 (Unnumbered Judgement dated 19^th May 2020)

Counsel

A. Kupmain, for the State
N. Wallis, for the Prisoner

SENTENCE

10^th December, 2020

1. TOLIKEN J: Gigimesi Steven, on 15^th September 2020 you pleaded guilty to an indictment charging you with one count of unlawfully causing grievous bodily harm to another person thus contravening Section 319 of the Criminal Code Ch. 262 (the Code).

2. You were charged that on 22^nd day of February 2020 at Bubuleta Village, Alotau, Milne Bay Province, you unlawfully caused grievous bodily harm to Mathilda Airomani.

FACTS

3. The brief facts put to you on arraignment are that you are married with 8 children. Due to some marital problems, you separated from your husband in 2014 and returned to your village at Lahamaga and stayed there for 5 years.

4. While you were separated from your husband, he started a relationship with another woman Mathilda Airomani. In 2019 your husband asked you to return to him for the sake of the children and you did so.

5. However, you kept on hearing stories that your husband was still having a relationship with Mathilda and thus made you angry.

6. On 20^th February 2020 you noticed your husband with a knife which you believed belonged to Mathilda and you questioned him about it. You took the knife away. On 22^nd February 2020 you confirmed with your sister that the knife indeed belonged to Mathilda for it had the letter “M” initialed on it and that they had used the knife at the local market a few days previously.

7. After confirming that the knife belonged to Mathilda you left and confronted her on the beach and stabbed her twice with the knife – once on her left shoulder and once on her left ribs. She was rushed to the Alotau Provincial Hospital for treatment.

8. The Medical Report showed that Mathilda sustained a penetrating wound to her left chest measuring 2 x 3cm in width and length. This required an emergency drainage seal. She eventually recovered and was discharged on 25^th February 2020.

THE OFFENCE

9. This offence carries a maximum penalty of 7 years imprisonment. Whether you will get 7 years depends on whether your case can be considered a worst case. This is because, the maximum penalty is usually reserved for worst cases of offending. (Golu -v- The State [1979] PNGLR 653). Furthermore, you must be sentenced according to the circumstances of your own case so that your punishment will fit your offence. (Aihi -v- The State (No.3) [1982] PNGLR 92).

10. Yours is not necessarily a worst case. However, I must determine an appropriate case for you. And to do that I need to consider not only the circumstance under which you committed the offence, but also your personal circumstances, the factors that mitigate and aggravate your offence, and to maintain consistency, I will also need to consider what sentences have been imposed in cases like yours. Of course, underlying all of this will be the purpose or object any sentence on you will seek to achieve, be it retribution, deterrence, or rehabilitation.

ANTECENDANTS

11. You are now 40 years old but was 39 when you committed the offence. You have one child from your current husband, two from your previous marriage and you are also looking after five children from your current husband’s previous marriage.

12. You are a member of the Kwato Church and were educated up to Grade 10. You are unemployed and is the 5^th of six siblings. Both your parents have died. You are a first-time offender. You had been on K800 bail since your arrest.

ALLOCUTUS

13. Yesterday you apologized for your offence. You said you thought you had the right to take the law into your own hands, but you now know that it was wrong. Since this is your first offence you asked for mercy. And because you have 8 children to look after you asked to be placed on probation.

SUBMISSIONS

14. Your Lawyer Mr. Wallis submitted that an appropriate sentence for you ought to be 3 ½ years or lower because of your mitigating factors which I will presently come to.

15. Your Pre-sentence Report for some reason does not have the views of the victim. It appears that the only people interviewed apart from yourself were your partner Steven Yolu Gaima and Village Councilor Nahasa Naroi. The Author of the Report Mr. Joel does not recommend probation for you because he is of the view that you and your partner lied to him about the number of children you have. While acknowledging that you have one child with your partner, Mr. Joel states that two of the children you were claiming, were from previous relationships and are not living with you. They are being cared for by some other people. This was confirmed by Councilor Naroi who strongly recommended that you be given a custodial sentence to teach you a lesson. It appears that Councilor Naroi is related to both you and the victim. Mr. Joel was therefore of the view that you are “not confident and suitable for change under probation supervision for rehabilitation”.

16. Mr. Kupmain submitted on behalf of the State that an appropriate sentence for you ought to be 3 – 4 years, because of the seriousness of the injuries you inflicted on the victim and the prevalence of the offence. There is need for deterrence and retribution so that the community can be protected as well, Counsel said.

STARTING POINT

17. It has been held by the Court that a starting point for this offence ought to be 3 ½ (The State -v- Konos (2010) N4157; The State -v- Sheekiot (2011) N4454). I, therefore, set a starting point for you at 3 ½ years. What then should be an appropriate starting point for you?

MITIGATING FACTORS

18. I accept the following factors as mitigating your offence.

(1) You pleaded guilty very early to your charge
(2) You are a first-time offender
(3) You were of prior good character
(4) You co-operated with the Police by making early admissions

(5) You were provoked in the non-legal sense in that you reacted to your partner’s affair with the victim

(6) You have expressed some remorse.

AGGRAVATING FACTORS

19. Against you, however, are the following:

(1) You used an offensive weapon to commit this offence

(2) You inflicted two stab wounds on the victim one of which penetrated her left chest thus exposing her to possible loss of life

(3) The wound to the chest was to a vital part of the body

(4) This offence is very prevalent.

DELIBERATIONS

20. I agree with the State that you must be deterred as do other men and women in our villages, towns and cities who think very little of seriously injuring others or offering violence for every indiscretion, insult and wrong committed against them. There is too much violence in our communities and unfortunately lives are often prematurely lost, or people become permanently maimed or even disabled.

21. So, you must be punished for your assault on the victim. The probation report shows that the victim was your current partner’s legal wife and that they had separated and remarried but obviously have been maintaining some contact or liaison and this led to the incident for which you now are before the Court.

22. I accept that you were provoked in the non-legal sense when you found out that you partner was still seeing the victim, even after he had taken you back after separating from you for 5 years.

23. Notwithstanding that, you had the option to opt out and not confront the victim when you learned from your sister that the knife your husband had which you later attacked the victim with belonged to her. After you learned that the knife belonged to her you went looking for her. You found her on the beach, and you stabbed her – not once but twice. There was therefore some deliberateness on your part.

24. Unfortunately, you are one of the hundreds of women who must suffer and end up injuring or even killing another woman because of the unfaithfulness of their husbands or partners. And to rub salt to the wound, these philandering and unfaithful men suffer no consequences for their destructive behaviours while women continue to be prosecuted and incarcerated for their violent reactions to their partners’ behaviours.

25. I must therefore balance all these considerations so that I may impose a sentence that is fair and just – not only for you but also for the victim and at the same time also advance the interest of the State and your community.

COMPARATIVE CASES

26. Both Counsel have cited several cases which are like yours – i.e., of women attacking and seriously injuring other women due to their partners’ infidelity or between co-wives.

27. In The State -v- Timoria (2017) N6745 the offender was sentenced to 3 years for causing grievous bodily harm to a co-wife. She and the victim had differences which eventually led to a confrontation where the offender cut the victim 3 times on her left knee. Ten (10) months of the sentence were deducted for time in custody. The balance was wholly suspended on condition including payment of K3,000.00 compensation.

28. The State -v- Timothy (2014) N5593: There the offender and the victim (co-wives to one man) had ongoing differences which culminated in a physical confrontation. The offender stabbed the victim 3 times on her right arm with a kitchen knife. The victim dropped to the floor unconscious and dropped her baby whom she was carrying. The offender was sentenced to 3 years which was wholly suspended on conditions.

29. And recently here in Alotau in the matter of The State -v- Salome Nikole;
CR No. 1223 of 2019 (Unnumbered Judgement dated 19^th May 2020),

I sentenced the offender there to 2 years imprisonment. There, there had been an on-going dispute between the offender and the victim and her husband. On the date of the offence, the victim was returning from the Aid post when the offender, who had been waiting for her in the village, attacked her with a stick, inflicting injuries to the victims right ulnar and small finger. I suspended the offender’s sentence and placed her on good behaviour bond with conditions.

30. These are but three of the numerous cases of this nature. The trend however, had been sentences within the range of 3 years and a good number of these were wholly suspended.

SENTENCE

31. Going back to your case, I should think that an appropriate sentence for you ought to be 3 years. I therefore sentence you to 3 years imprisonment. Should you get a suspension?

SUSPENSION

32. One of the principles guiding the suspension of a sentence is a favourable PSR. Your PSR is not favourable. (Public Prosecutor v Don Hale (1998) SC 564) Your Village Councilor, who appears to be related to you has called for a custodial sentence to teach you a lessor. And the Probation Officer has expressed the view that you cannot be rehabilitated if you were to be placed on probation. Whether you are indeed irreformable is debatable though. I am of the view that women like you who must endure the infidelity of your husbands and partners should not be treated like common criminals. If anything, the overriding consideration in matters like yours is rehabilitation and not incarceration for the sake of retribution.

33. It is not apparent to me that you have been involved in a long running dispute with the victim, or that you have had previous violent confrontations with her. And despite an unfavourable pre-sentence report, I do not think that that alone should prevent me from exercising my discretion to consider to suspending your sentence or a portion of it under Section 19(1)(d) of the Criminal Code. In my opinion you deserve some leniency and a second chance.

35. I therefore wholly suspend your 3 years sentence upon your entering into your own recognizance to be of good behaviour for 3 years with the following conditions:

(1) You will keep the peace towards Mathilda Airomani

(2) You shall within 3 months from today pay Mathilda Airomani K2,000.00 compensation.

(3) You shall perform 2 hours of unpaid community service on the

1^st Saturday of each month except the Saturday that falls on Christmas, New Year or Easter Weekends, for the first year of your bond, for the Bubuleta Elementary School under the supervision of the Headmaster and Ward Councilor.

(4) Your K800.00 bail shall be converted as part payment of your compensation.

(5) Any sureties paid by your guarantors will be refunded to them.

Ordered accordingly.

__________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner