DC587

PAPUA NEW GUINEA
[District Court of Justice
Sitting In Its Criminal Jurisdiction]

DCCr 388 of 2006

THE STATE

v.

YANI NOIMBIK

Tabubil: P. Monouluk
2006: 29th September; 06th October;
2007: 03rd January

Sentencing

Sentencing – Ill-treatment of child – Section 95(2)(a) Child Welfare Act Chp. 276 – Defendant physically assaulted own male son child of one year and nine months –Defendant attempts to suffocate child – Child suffered permanent injury to rib bone – Injury to affect on- going development of child – Not guilty plea – Nil previous conviction –Penalty insensitive to crime – Court bound by law – No extenuating circumstances – Appropriate penalty – Imprisonment.

International law – Child abuse – Violation of the Convention on the Rights of the Child – 
Convention recognizes the human dignity of every child and demands that children be protect from all forms of abuse – PNG as a member state has an obligation under the convention.

Practice and procedure – Passing sentence in absence of defendant – Defendant not present to receive decision – Section 125 District Courts Act Chp. 40 not applicable –Defendant present throughout the trial – Defendant given right to be heard – Natural justice observed – Court adjourned for sentencing and defendant absconded bail.

First Constable PW Stella Warmanai
Defendant not available

03rd January 2007.

1. P. Monouluk: On Friday 06th October 2006 the defendant Yani Noimbik, 33 years old male of Kup village, Kerowagi, Chimbu Province was found guilty for having committed child abuse contrary to Section 95(2)(a) Child Welfare Act Chp. 276.

2. The Court heard from three State witnesses that prior to the incident the defendant had deserted his son of one year nine months (the victim) and its mother for more than six months. On Saturday 29th July, 2006 the defendant finally returned home at about one o’clock in the early hours of the morning but not before getting himself drunk. As soon as he arrived the defendant started assaulting the mother and then proceeded to the child who was fast asleep on its bed.

3. The court heard that the defendant picked the sleeping child from its bed and held it against his chest and first began to suffocate the child by placing his palm over its nose and mouth. Despite the child’s frantic effort to remove the defendant’s palm from its nose and mouth the defendant persisted with his grasp. Few minutes later the defendant then reached down to the child’s stomach and with both hands began to squeeze its small stomach. The squeeze was so hard that it was confirmed by medical report later that the child’s rib bone had apparently cracked.

4. Even though the child was crying in pain and the mother begging, the defendant did not relent in his effort. This time, the court heard that, the defendant placed the crying child on a mattress face down and once more pressed its face down hard onto the mattress and continued on to suffocate it. Finally with the help from others the mother managed to rescue the suffering child from the defendant. As soon as it was day break the witnesses realized that the child’s health was deteriorating fast so was rushed to the hospital.

5. Doctor Toki Inina, Tabubil Hospital who conducted medical examination of the child said among others, that the child had suffered a cracked rib which is not classified as a birth defect. In his opinion Doctor Inina said that the crack was a result of something else which the court finds it to be consistent with the abuse occasioned on the child the night before.

6. In his plea for leniency the defendant prayed to the court asking for mercy. His reasons being that he has two wives; one has since passed away leaving behind three young children presently being looked after by the defendant’s mother in Kerowagi. The other wife is the mother of the victim child. The defendant said that he also has the responsibility to look after his entire family of seven brothers and sisters who rely solely on him to support them financially. The defendant said he was sorry for what he had done and pleaded that he be not sent to prison.

7. The State on the other called for the defendant to be imprisoned for his misconduct. In an emotional presentation to the court, the female prosecutor, between tears and sobs, pleaded that the court not ignore the fact that the defendant’s own blood child at the tender age of one year nine months had suffered badly and is now living with a permanent defect. The State said that as the child’s father, the defendant should be the one offering love, care and protection to the child instead of harm. The State strongly believed that the defendant’s plea for mercy must not be accepted by the court because the defendant never offered any mercy to the crying child when begged of him in the first place. The State says that as a gift from God the defendant’s treatment of the child was against godly principles which resulted in a permanent injury therefore the defendant can not expect the court to treat him lightly now.

8. It is now left to the court to decide on what should be the appropriate penalty for such an offence, taking into account the nature and the circumstances surrounding the case itself and also looking at what the parties have said in respect to the type of sentence to be imposed.

9. Before the court can pass sentence, it must look at the law under which the defendant has been charged and convicted under. Section 95(2)(a) of the Act (supra) says as follows:

"95	Ill - treating children.

(1) …

(2)	Subject to Section 109, a person who -

(a) assaults, ill – treats or exposes a child, . . .

in such a manner that the assault, ill – treatment or exposure has resulted or appears likely to result in bodily suffering or permanent or serious injury to the health of the child is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding  12 months, or both."

10. The effect of this provision is that in a situation where an offender is convicted of this offence he faces the possibility of a monetary fine of up to K400.00 or goes to prison for a term of up to 12 months or, in a very rare situation, he be fined and imprisoned at the same time. This range of penalty options gives discretionary powers to a court to impose a penalty or a range of penalties that is considered appropriate taking into account the nature of the ill-treatment occasioned on the person of the victim child and, importantly also, considering the gravity of the injury sustained.

11. May I now ask myself what the sentencing trend is in respect to this offence? From my own assessment it is apparent that such trend is in no existence for the District Courts. The lack of judgment writing coupled with the possibility of the lack of desire to pursue complaints under this provision of the law has, by and large, contributed to no sentencing trend before the District Courts of such an offence. Such may often than not result in inconsistent decisions to the detriment of offenders and individual courts would therefore be left to their own devises to judge appropriate sentences based solely on internal assessment than help from elsewhere. This case today is no exception. Since I have very little, if not, no help at all from elsewhere to ascertain an appropriate penalty, I am now left with a situation whereby the defendant’s chance to stand or fall depends very much on the circumstances surrounding the case itself and from no other.

12. In the defendant’s case, the only factor that accords credit to him is the fact that he has no previous conviction as an offender in the past. Apart from that there is nothing forthcoming that may mitigate his situation. Against this lay a series of aggravating factors that operate to down play his lack of previous conviction and his plea for leniency.

13. The first factor that I wish to consider is the fact that the defendant, from the very beginning had strenuously denied having assaulted the victim child. This was the position the defendant maintained and carried right throughout the trial until found guilty in the end. While I understand that the defendant has a right to deny the charge and let the State prove its case, that right comes with a responsibility and should not be abused. I believe that being the child’s father he should have made it easier for his wife and the victim child by admitting the offence and thereby earning a respect for himself for being an honest person. This would in turn make his remorse and plea for leniency accepted as genuine. A remorse and plea for leniency offered after being found guilty is considered of less weight and is of less significance because it comes at a greater cost and suffering to the State witnesses who had to relive the all episode again, this time in a public forum.

14. Secondly, the type of assault occasioned on the person of the victim child is unforgivable. In my assessment of the evidence, it is apparent that the child was fast asleep as it was in the early hours of the morning when the defendant approached it and began to suffocate it by placing the palm of his hand over its nose and mouth while the child was frantically kicking and punching its small feet and hands in an attempt to free the defendant’s grasp from its face. If that is not enough, the defendant then proceeded to grab the child by its stomach and with both hands began to squeeze as hard as he could at its small stomach resulting in a broken rib bone which was confirmed later by the medical authorities. Immediately after that the defendant then placed the little child face down onto a mattress and continued to suffocate it. 

15. This type of assault as portrayed by the evidence, no doubt, has all the necessary element of a charge of attempted murder. It is obvious from the defendant’s conduct that he was pursuing an intention to kill the child who had apparently resulted in him being locked in a police cell in an earlier child affiliation proceeding and his behaviour towards the child and its mother on that night, I believe, was a retaliatory act.

16. Thirdly, as a result of that assault the child now suffers an injury permanent in nature – a bone defect to one of his rib bones. Doctor Inina makes it clear in his evidence that no longer can the bone be healed because it was broken while it was still in a cartilage form. This, he says, may possibly affect the child’s health in terms of his on-going development. In fact from my own assessment in court, the child looked frail and pale, and most of the time in pain.

17. Fourthly, as the father to the victim child, the defendant holds a position of trust to the victim. Naturally the child will look up to the defendant as someone who can safeguard and protect it from harm. By his conduct the defendant, as its biological father, has abused that position and relationship of trust and went ahead to physically abuse the innocent child who was unwillingly caught in the tussle between its parents. The child did not ask to be assaulted in that manner. As far as the child was concerned, the defendant was its provider and protector and the last person on its innocent mind to harm it. Instead of providing the care and support expected of him, the defendant saw fit to abuse the child to the point where it now suffers, among others, an injury of a permanent kind.

18. Finally, the defendant’s conduct towards the child not only breached our domestic law as I have mentioned above but has transcended international boundary and gone into violating an international law – the Convention on the Rights of the Child which Papua New Guinea is a signatory to. This Convention recognizes and highlights the human dignity of every child and also demands from member states like PNG that children, no matter how wrong or right they may be must never be harmed in any form or manner and must be protected from all forms of abuse. Each day we see in the news media of reports of children in PNG and elsewhere being continuously and systematically exposed to all forms of abuses, one of which is cruelty at the hands of relatives and people they know and trust, like we see today.

19. As a member state to this Convention, PNG through its various state agencies including the court system is called upon to enforce and give effect to this Convention. Under this law a call is made for a zero tolerance to all forms and manners of abuse and all levels of courts in the country and other state agencies are required to safeguard and protect innocent and defend-less children from abuses by enforcing both applicable national and international laws. Accordingly, PNG as a signatory to this Convention is under an international obligation to give effect to the intention of this Convention and in so doing must ensure that children’s rights are safeguarded, protected and enforced.

20. I am reminded that the defendant has since absconded bail immediately after the court had adjourned for its final decision on sentence. While the defendant is physically not present to receive his sentence it is of no fault to the State or the court itself that he is not present today. The defendant, without the knowledge of the State and the court, had quietly resigned from work and flew to Kerowagi, Simbu Province or NCD in anticipation of an imprisonment term. I am mindful that the defendant will not be affected adversely in terms of his natural justice consideration because it was only a matter for him to present himself in court to receive his sentence however; he had opted to quietly leave early instead.

21. Section 125 District Courts Act Chp. 40 which refers to a defendant being absence from court does not apply to the present situation. This provision refers to a situation where a defendant makes no appearance at all during his trial and the presiding magistrate is called upon under this provision to be vary of the defendant’s right to be heard as natural justice dictates. In this case at hand, 99% of the court work has been completed in the defendant’s presence with the remaining 1% for the court to deliver its decision on sentence when the defendant saw fit to leave quietly without seeing that last process through. To bring back the defendant under a warrant of arrest will not be viable because the State is not too sure of where the defendant had fled to, however, it is understood that the defendant may have gone home to Kerowagi, Simbu Province or be in the NCD or can still be anywhere in PNG. It would also be too costly and time consuming for the State and the child’s mother to endure any further to see justice in the end. I therefore believe that a sentence delivered in absentia is appropriate for our purposes.

22. At this juncture may I take this opportunity to say that the maximum penalty under Section 95(2)(a) Child Welfare Act (supra) of K400. fine and/or 12 months imprisonment does not reflect well the seriousness of the offence we see today. One has to look at the nature surrounding this offence itself – the nature of the ill- treatment upon the child, the age of the child and the life time injury sustained and say that indeed the penalty aspect of the law is insensitive and does not give the sentencing court sufficient room to move in considering an appropriate penalty for more serious forms of ill-treatment of a child like we see today.

23. If PNG is serious about its international commitment to give a high priority to the rights of children, to their survival, their protection and development, and still remembers its obligation under Article 19 of the Convention (supra) then it must act now to make appropriate legislative changes. This Article says as follows:

"Article 19

1.	State Parties (member states) shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or  exploitation, including sexual abuse, while in the care of parents, legal  guardian(s) or any other person who has the care of the child."

24. This Article calls upon member states like PNG to, among others, take all appropriate legislative measures to protect children from abuses in any form or manner. In this case the State must consider amending the existing maximum penalty provision from K400. fine and/or 12 months imprisonment to a maximum of K2,000.00 fine and a maximum imprisonment period of up to three years to be of any deterrent to like-minded and therefore give effect to the Convention in a meaningful way.

25. No doubt in the present case, even though the circumstances depict an even more serious form of assault on the victim child that falls within the category of attempted murder and therefore warrant a heavier form of penalty, I cannot go pass the mark set by law. My hands are tied – I can only go as far as the law allows me. Having considered what the defendant and the State had to say, I am reminded that there were no extenuating circumstances under which the offence was committed. It was a deliberate breach of the law and the defendant knew the consequences that will follow his actions of having harmed an innocent and defend-less child who is now affected for life at no fault of its own. I therefore sentence the defendant to a maximum period of 12 months imprisonment.

26. It is now my plea to all responsible corporate citizens and state agencies, especially police in the Simbu Province and NCD to work together and ensure that the defendant is promptly apprehended and imprisoned at the nearest corrective institute as per the warrant of commitment to give effect not only to our national law but also to our international obligation under the Convention and in so doing, ensure justice for the innocent toddler.

Orders accordingly.