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Kipandu v Gabriel [2009] PGDC 69; DC1002 (5 January 2009)

DC1002

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CRIMINAL JURISDICTION

Case Number GFC 2 of 2008

BETWEEN:

CONRAD KIPANDU
(Informant)

AND:

JOSEPHINE GABRIEL
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 8 August- 23 December
2009: 5 January

CRIMINAL: Offence of unlawful wounding- Sentence- Multiple stabbed wounds causing severe loss of blood could be fatal as aggravating factor- Guilty plea- Provocation in non legal sense submitted for victim committing alleged adultery with offender’s husband - First time offender- Expression of remorse- Cooperated with police-Court ordered pre sentence report which recommended should court impose suspended term of sentence offender is suitable candidate for probation with condition for repatriation to home province in Simbu Province- 1 year suspended sentence imposed on condition of recognition for 2 years probation with terms including repatriation- Criminal Code Act s. 322 & s. 19.

CASES CITED:

The State v Albina Sinowi (unreported judgment) (2001) N2175
The State v Marshall Western Pangih (unreported judgment) (2004) N2676
Golu v The State [1997] PNGLR 653
The State v Joseph Pingu (unreported judgment) (2001) N2169
Acting Public Prosecutor v Don Hale (unreported Supreme Court judgement) (27/08/98) SC564.

Counsel

Sergeant N Pitu for Police Prosecution for State
Mr. D Joseph for Defendant

JUDGEMENT ON SENTENCE

5 January 2009

SELEFKARIU PM: After receiving advice from your counsel you submitted a plea of guilty for wounding the victim on 27 November 2007 at the premises of Madang Bakery in the Township of Madang, Madang Province.

According to the police facts you caught up with the victim when she was busy playing a game of cards with some other persons.

You went straight to where the victim was and drew the knife you carried in your possession and stabbed the victim four times on her left shoulder.

Then you grabbed a piece of broken glass and used that to cut the victim on her left hand which resulted in the victim bleeding profusely.

Because of that the victim fell unconscious and had to be rushed to the hospital for some emergency treatment to save her life. The victim was hospitalised as a result and released sometime later.

When you were questioned by police you freely admitted the offence but you said you did that after catching the victim and your husband for consuming alcohol together which you accused the victim for having an adulterous affair with your husband.

It is accepted that once you admit the offence the police summary of facts are accepted and processed as evidence against you.

In that regard and after the submissions for sentence is received the remaining issue is for this Court to determine your sentence.

As a Court I must thank both sides for their submissions for which I will allude to parts of them. I must also thank the Probation Services for providing a pre sentence report which has assisted the court greatly in the consideration for sentence.

In your submission that was prepared by your counsel you submitted a number of case laws. I must remind all of us that case precedents are useful as guide as the court retains wide discretion. But suffice to say that the discretion is subject to; the merits of the case, the prevalence of that offence, public perception, the trend of offence, the thinking of the courts as regards particular offences and the principles of law it ought to base it on.

To paraphrase the principles in the case laws it is acceptable that the maximum prescribed penalty be reserved for the worst type of any offence, Goli Golu v The State (supra) and to determine whether a case falls into the worst case category depended on the facts or merits of the case, The State v Marshall Western Pangih (supra).

In cases of unlawful wounding the types of weapon and how it was used to inflict the number and types of wounds and their seriousness are matters of aggravation.

You submitted a plea of guilty and until today you are a first offender with no prior records of criminal conviction. You said you are sorry for what you did and ask that the court must accept this as genuine because you cooperated with police by admitting the wrong. You also submitted a defence of provocation in a non legal sense that the conduct of the victim to consume alcohol with your husband had caused you to conclude that the victim was committing adultery with your husband.

I have considered all these things what appear to be factors of your mitigation.

An early plea of guilty has been regarded as act of contrition and remorse and savings to the State in terms of time and cost.

Your admission and cooperation to the police has been considered as mitigation and will accept as genuine remorse on your part since the prosecution have not raise any contrary views in their submissions.

You acted under some form of provocation but not the type that could have afforded you the full defence of provocation under Section 267 of Criminal Code Act but I will give some consideration as a factor in your mitigation of your sentence.

You submitted your willingness to pay compensation to the victim in the sum of K200.00.

You also submitted that you have been in custody for more than nine months.

In conclusion you submitted for the court to impose a term of nine months imprisonment as your sentence and the time spent in custody be deducted against it which you submitted to be sufficient punishment for the wrong you committed.

In the prosecution’s submissions they said these types of offences are prevalent and attract custodial sentence which will deter you and others. They submit that you had planned your action and acted to it with clear intention which shows in your conduct to assault the victim immediately when you found her.

You caused multiple bodily injuries to the victim which shows clearly your intention and was premeditated.

According to the case laws the range of past sentences for this type of offence ranged from a few months wholly suspended to three years with two years suspended with terms as in the case of The State v Joseph Pingu (supra).

In your case you unceremoniously used a knife and a broken piece of glass to stab and cut the victim even under no resistant or opposing violence when the victim was caught off guard and of no threat to you.

Your behaviour is uncalled for and indeed very aggravating under the circumstance which is evident in the multiple injuries for which you admit to.

I do note from your submissions that you submitted the weapon used is a broken piece of glass but according to the police facts it says you stabbed the victim four times with the knife and later with a piece of glass.

The rule is that once you admit to the facts that stand as evidence and does not require any further proof.

The facts also say that as a result of the injuries the victim bled heavily and except that she was rushed to the hospital in time it could have been fatal as the victim could have died from loss of blood.

Your case therefore equates to be quite serious and attracts the maximum prescribed penalty of three years.

In your mitigation you pleaded guilty, a first offender, you said you are sorry, cooperated with police, you are willing to compensate the victim and you spent time in custody.

In relation to compensation it is viewed that pre sentence compensation shows genuine remorse and carries a higher mitigatory weight as compared with court ordered compensation.

You submitted that you acted under provocation but in a non legal sense as you did not catch your husband and the victim in the act of adultery, the ‘flagrante delicto’ position.

In that regard I can give some consideration but with very little weight as there is no evidence and so it remains a mere allegation without proof.

In the case of Marshall Western Pangih (supra) the wound was a single spear wound which the court viewed as serious and premeditated as in your case.

In my view your case is serious and attracts almost the maximum prescribed penalty of three years imprisonment using Marshall Western Pangih’s case as a guide.

Even though you submitted that the case of The State v Albina Sinowi (supra) be considered as guide I think the factor of pre sentence compensation is missing from your case and even though you have indicated your willingness to pay compensation that does not afford much weight in your mitigation for sentence.

But I think other factors such as guilty plea, being remorseful, cooperating with police and spending considerable time in custody are sufficient to mitigate your sentence and to qualify you to a suspended sentence with terms.

Taking to account all of the above both the aggravating and the mitigating factors, to give you a custodial sentence would be most unfair to you and would endanger further the life of your breast feeding child who is innocently being held in custody because of his age.

Cases of women committing crimes of passion in polygamous marriages are quite rife in our society. It becomes unfair on the wife if she is singled out to face the brunt of the law whilst the husband who is in most cases the principal cause is left alone.

But that does not mean that your behaviour can be excused because what you did is unacceptable and deserved punishment.

The offence is very prevalent and except for the merits of its case it deserves a deterrent punishment.

I note your willingness to pay compensation and to hold you in custody would not enable you to seek help from your relatives as compensation is considered mainly a group form of punishment or responsibility so whoever assisted you in paying compensation will continue to remind you of your responsibility to promote good behaviour: Acting Public Prosecutor v Don Hale (unreported Supreme Court judgement) (27/08/98) SC564.

On that basis I convict you and sentence you to one year imprisonment for which the whole of its execution is suspended on condition that you enter into recognition for two years probation on the following conditions:

1. You undertake to keep peace at all times and be of good behaviour especially towards the victim for the period of two years as from today;
   
2. You are ordered to compensate the victim in the sum of K200.00 within twenty one days from today;
   
3. You will be repatriated to your home province in Simbu Province immediately after you have complied with condition number (2) in paying compensation but before that you are not to leave Madang Province except by the permission of court;
   
4. You shall refund your bail which was set aside when you were arrested under the bench warrant;
   

In the event that you do not comply with any one of the above conditions which result in having being imprisoned the term of your suspended sentence, then the commitment warrant should deduct the time you have spent in custody so that you only serve the balance of your remaining sentence.

_________________________
Police Prosecution for State.
Lawyers for Defendant: Paul Paraka Lawyers.