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State v Waninara [2020] PGNC 510; N9900 (25 November 2020)

N9900

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 369 OF 2018

THE STATE

V

ELIZABETH WANINARA

Kokopo: Suelip AJ
2020: 9^th, 23^rd September & 25^th November

CRIMINAL LAW - Sentence – plea – grievous bodily harm s. 319 – prisoner accused husband of engaging in an extra marital affair – prisoner broke complainant’s right sore toe – sentence of 3 years, custody term deducted – balance wholly suspended with no conditions

Cases Cited

State vs. Kevin Ambai [2018] N7154
State v Paranis [2009] N3761
State v Hilary Lemia [2012] N4817
State v Kos [2013] N5365

Counsel

G Tugah, for the State
JM Ainui, for the Prisoner

SENTENCE

25^th November, 2020

1. SUELIP AJ: On 9 September 2020, the prisoner, of Wairiki No. 4 village, Gazelle District, East New Britain Province, pleaded guilty to one count of unlawfully causing grievous bodily harm pursuant to section 319 of the Criminal Code.

2. This is my decision on sentence.

Facts

3. On 29 January 2018 between 7-8 pm, the prisoner was at Tagitagi No. 2 village in the Toma/Vunadidir LLG, Gazelle District, East New Britain Province. At that time, her husband, Bernard Unul went to their house at Paparatava Health Centre to have his bath. Whilst there, she asked him to stay and wait for her to cook dinner. After having dinner, they had an argument. She then reached for her husband’s right sore toe and broke it with her hand.

4. Her husband was rushed to the Paparatava Health Centre and was further referred to Nonga General Hospital where his toe was completely amputated. The Police later arrested the prisoner and charged her with one count of grievous bodily harm pursuant to section 319 of the Criminal Code Act.

The offence

5. The offence of grievous bodily harm under Section 319 of the Criminal Code states as follows: -

319. Grievous Bodily Harm

A person who unlawfully does bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

6. The penalty for this offence is imprisonment for a term not exceeding seven years.

Personal Particulars

7. In the pre-sentence report, it shows the prisoner is 36 years old and come from Wairiki No.4 Ward in the Toma/Vunadidir LLG of the Gazelle District. She is married to the complainant, Bernard Unul and has 4 children. She comes from a family of 7. She has 3 brothers and 3 sisters, and she is the fifth born in the family. Her father passed away in 2008.

8. It also says in the report that the prisoner only completed up to grade 6 at Wairiki Primary School in 2000 but could not continue due to poor grades. She never had any formal employment but relies solely on subsistence gardening, cocoa block consisting of three hundred (300) cocoa trees and a little piggery where she sells the piglets for K50.00. From her garden goods, if she markets them, she gets roughly K100.00 – K150.00, and the cocoa block, if harvested, she earns an income of between K800.00 – K1,000.00.

9. Also, from the report, her 65-year-old mother and her elder brother say she is a humble person who keeps to herself and they blame the complainant for instigating the trouble as he was engaging in an extra-marital affair with another woman. They said they are willing to pay compensation and ask that the prisoner be given a non-custodial sentence.

10. Further in the report, the Ward Member for Wairiki No. 4 confirmed that the prisoner is of good character, and he asked the Court to give her a non-custodial sentence. He says he is available to provide supervision.

11. More importantly, her husband (complainant) says in the report that she has learnt her lesson whilst in prison and will change her bad ways. He asked the Court to be lenient on her and give her a non-custodial sentence. He says he misses her very much and still loves her and he is looking forward to being reunited with her.

12. The author of the probation report, Mr. Noel Awagalas has assessed the prisoner and finds that she is not a danger to the community. He therefore recommends that she is a suitable candidate for probation supervision.

13. In the Means Assessment Report, it does not show the prisoner’s ability to pay any compensation, as she does not have any savings, but it is stated that she will rely on her family to assist her to pay for the compensation.

14. As regards previous criminal records, the prisoner does not have any prior convictions as shown in the Antecedent Report.

15. When the prisoner was given the opportunity to speak in Court during allocutus, she began by apologizing to the Court and to God. She also said she is sorry to her husband and apologized for what she did. She said she will not do the same thing again. She said this all started when her husband started going around with the other woman. She said she now wished to go back and live with her children. She said it has been 2 years and 7 months away from her children.

Mitigating factors

16. In her favour, the mitigating factors are these: -

(i) she is a first-time offender with no prior conviction.
(ii) she pleaded guilty.
(iii) she made admissions to police and co-operated well with them.
(iv) there was a pre-existing condition (husband’s sore toe).
(v) there was some form of de facto provocation.
(vii) her action was not pre-planned.
(viii) she committed the offence in a domestic setting.
(ix) she expressed remorse.
(x) she is willing to pay compensation.
(xi) there was no weapon used.

Aggravating factors

17. Against her, the aggravating factors peculiar to her case are these:-

(i) she used violence and force.

(ii) she broke the right toe of the complainant which was later amputated.
(iii) prevalence of the offence in the society and the need for deterrence.

Submission on sentence

18. The nature of the offence the prisoner committed is not of the worst type and therefore it does not warrant the maximum penalty of seven years.

19. During submissions by both counsels, a few local cases were cited, and these will be discussed briefly to show the trend of sentencing in such an offence. The first local case is State vs. Kevin Ambai [2018] PGNC 74; N7154, where a similar offence was committed in Warongoi, East New Britain Province. In that case, the prisoner had approached the victim and confronted him asking him if he (the victim) had reported him to the Police. The prisoner and the victim were walking together and arguing when the prisoner pulled out a bush knife and swung it at the victim. The victim lifted his arm to block the knife, but the knife cut his wrist. The prisoner pleaded guilty to grievous bodily harm under S319 of the Criminal Code. The prisoner was sentenced to a term of five (5) years imprisonment. One year, one month was deducted for the period he was in custody. Remainder of the sentence was suspended upon the prisoner being placed on Probation for a period of four (4) years.

20. In another local case of State v Paranis [2009] PGNC 145; N3761, the prisoner, being enraged by stories he heard from his two friends that the victim and his friends had sworn at them, used a bush knife in causing injuries to the small finger and adjacent tendons of the victim’s hand. The prisoner entered an early guilty plea to grievous bodily harm. The Court imposed a sentence of 2 years which as fully suspended with conditions.

21. In State v Hilary Lemia [2012] PGNC 179; N4817, also in Kokopo, the prisoner and the victim all live up at Warongoi, East New Britain Province. The prisoner and his wife had been having marital problems. Prior to the commission of the offence, the wife of the prisoner had sought refuge at the house of the victim by hiding there. When the prisoner heard this, he took his bush knife and cut the victim. The victim sustained three deep cuts on the right side and one deep cut on the left side of the face. The prisoner pleaded guilty to grievous bodily harm. The Court in this matter imposed a sentence of four (4) years which was fully suspended with conditions.

22. Finally, in State v Kos [2013] PGNC 221 N5365, the prisoner is the husband of the victim. He used an axe to amputate two of the victim’s fingers during an argument in which the prisoner suspected the victim of having extra-marital affairs. He was sentenced to four (4) years imprisonment in hard labour. The pre-sentence period was deducted, and the 3 remaining years were suspended with conditions.

23. Whilst the State says that a sentence of 3 years is appropriate in this case, counsel for the prisoner argues that a sentence of 2 years should be imposed. Her counsel also argues that Court should not order the prisoner to pay any compensation to the complainant as he is the instigator of the argument which led to her to committing the offence. The prisoner’s counsel says that if the prisoner’s husband had not engaged in an extra-marital affair and brought another woman to their marital home, the prisoner would not have argued with him and assaulted him.

Consideration

24. In considering the appropriate sentence for the prisoner in the circumstances of her case, I see that the mitigating factors far outweighs the aggravating factors and so, I will impose a sentence of 3 years from which the prisoner’s custody term of 2 years, 8 months will be deducted.

25. Further, she will not pay any compensation as there is de facto provocation by her husband engaging in an extra marital affair. I also consider that having served a third of the sentence, that is sufficient punishment for her to have rehabilitated her. She had said during allocutus that she will not repeat the same offence and I believe her. Hence, the remainder of her sentence is wholly suspended with no conditions.

Orders

26. The Orders of the Court are: -

(i) The prisoner is sentenced to 3 years imprisonment.

(ii) Her custody term of 2 years and 8 months is deducted.

(iii) The balance of 4 months is wholly suspended with no conditions.

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Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner