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State v Kusan [2021] PGNC 258; N8966 (20 May 2021)

N8966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 552 OF 2021

BETWEEN:
THE STATE

AND:
PRICILLA KUSAN

Vanimo: Rei, AJ
2021: 18^th& 20^th May

PRACTICE AND PROCEDURE – Criminal Law – Unlawful wounding – what is the appropriate sentence – S.322 of the Criminal Code Act – revenge of her husband’s extra marital affair – 18 months imprisonment – K500 compensation paid – Plea.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR
The State -v- DiaperoSusuve N1880
The State -v- Hubert Nanipal N6373
The State -v- Isaac Wapuri [1994] PNGLR 27
The State -v- Singua [2012] PNGLR 389
The State -v- VintinKanken N5552

Counsel:

Ms. L Jack, for the State
Mr. K Masket, for the Applicant

20^th May. 2021
1. REI. AJ: BACKGROUND: The accused stands charged with the offence of unlawful wounding under Section 322(a) of the Criminal Code Act.

2. The facts relating to the charge are that because her husband was alleged to have an extra-marital affair with another woman Sharon Sibu the sister of the victim Martha Sibu, an argument erupted between Sharon Sibu and the prisoner on the 30^th August 2020 when she attended at the victims house and, out of frustration, a scuffle took place in which the prisoner, being in possession of a bush knife, swung the bush knife and wounded Sharon Sibu around the area of head resulting in a 4 cm deep laceration on the head.

3. The prisoner was arrested on the 4^th September 2020 and charged with the offence of unlawfully wounding Sharon Sibu. She was subsequently granted bail.

PLEA

4. The prisoner appeared in Court on 18^th May 2021 and was arraigned.

5. The charge as laid under Section 322(a) of the Criminal Code Act and the relevant facts were read to her and was asked whether she understood the charge and what plea she would enter.

6. The prisoner entered a provisional plea of guilty.

7. Upon perusal of the committal file, the guilty plea was confirmed.

ANTECEDENTS

8. She was 50 years of age at the time of the crime and is a first-time offender. She has no prior criminal record against her name.

ALLOCATUS

9. When asked to address the Court on sentence, she said she admits what she did was wrong and regrets having done so and is remorseful. She is willing to pay compensation for the injuries inflicted on the complainant. She also stated that since her husband is involved in extra marital affairs, he has become the bread winner for the family, a task she finds difficult in the absence of the man with whom she has the children.

SENTENCE

10. Submissions were made by Mr. K. Masket in favour of the prisoner making emphasis on the mitigating factors. He submitted further that the offence could not have occurred had her husband been faithful to her in their marriage. She was provoked, in the non-legal sense to do what she did.

11. The State submitted that while it is agreed that the mitigating factors outweigh the aggravating factors, a custodial sentence of 18 months be imposed as a general deterrence to others from committing crimes of this nature.

12. The lawyer for the prisoner referred me to the case of The State -v- Isaac Wapuri [1994] PNGLR 27, The State -v- Vintin Kauken (2013) N5552, The State -v- Hubert Naripai (2016) N6373 & The State -v- Diapero Susure (1999) N1880.

13. A cursory perusal of these cases reveal that they deal with the charge of grievous bodily harm prescribed under Sections 315, 319 & 322 of the Criminal Code as such they are not relevant to the question of sentence under the heading of unlawful wounding provided for under Section 322(1)(a) of the Criminal Code Act.

14. Lawyers must ensure that researches for the purposes of submissions to be made to Court are done properly so as to avoid misleading the Court, especially in the sentencing of prisoners. It is a very serious matter for a Lawyer to operate outside of the prescient of the law and if there is substance, the lawyer can be referred to the Lawyers’ Statutory Committee provided for under the Lawyers Act to be dealt with according to law for improper conduct.

15. The matter of making wrong references to precedent cases was drawn to my attention by Ms. L. Jack during submissions which I fully agree with.

16. When imposing sentence for unlawful wounding, it is said in Goli Golu -v- The State [1979] PNGLR 653 that the maximum penalty of 3 years in hard labour prescribed under Section 322(1)(a) of the Criminal Code should be reserved for the worst type of unlawful wounding.

17. In considering what sentence to be imposed, I had the opportunity of perusing the following cases:

(a) The State -v- Lekis [2007] PNGC 214: N5029 Cannings J

18. The prisoner in this matter had a dispute with his sister and his father in a public place. He pleaded guilty to unlawful wounding pursuant to section 322(1)(a) of the Criminal Code.

19. It was held that the starting point for sentencing for this sort of assault in a domestic setting is 18 months as the starting point for Unlawful Wounding sentences. It should either increase or decrease depending on the presence of aggravating and mitigating factors.

20. The prisoner in this case was sentenced to 2 years 6 months. 1 month was deducted, the balance of 2 years and 5 months was wholly suspended with conditions and orders which included K1000.00 compensation payment to the victim and other orders.

(b) The State -v- Singua [2012] PNGLR 389, N5611 Toliken AJ (as he then was).

21. The prisoner pleaded guilty to one count of unlawful wounding pursuant to section 322 of the Code.

22. The prisoner in this case was angry with the victim who was seen to be flirting with her husband. Upon seeing them both together, she took out a kitchen knife and stabbed the complainant twice on her back. A passer-by saw what was happening and stopped her from further assaulting the complainant. She then took both of them to the police station where they were later charged.

23. The Court in this case imposed a sentence of 12 months imprisonment.

24. The sentence was wholly suspended and the prisoner was placed on 12 months probation with additional conditions:- to keep the peace towards the complainant, that she pay K1,000.00 to the victim within 6 months from the date of sentencing.

25. The bail monies of K200.00 was converted as part payment of her compensation payment to the victim. The Community Based Correction Officer was directed by the Court to file an affidavit to confirm that the compensation was paid.

26. Considering the fact what the prisoner said in her allocatus that she is the bread winner for the family of five (5) children, but that she is willing to compensate the victim which is acceptable to the complainant as is noted in the PSR, she is a first time offender and that the Probation officer recommends that the prisoner is a suitable candidate for a non-custodial sentence, I am minded to so impose a non-custodial sentence.

27. The prisoner is therefore sentenced to 18 months imprisonment which sentence is wholly suspended upon the following conditions:

(i) she is to be of good behaviour
(ii) she pays compensation of K500 to the victim within six (6) months from today
(iii) her bail monies shall be paid to the victim as paid in full payment of the compensation herein
(iv) she is not to be involved in any trouble with the victim but is at liberty to issue proceedings under the Adultery & Enticement Act seeking appropriate Order(s).

________________________________________________________________Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant