N2034

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1147 of 2000

THE STATE

-v-

DARIUS TAULO

LAE: KANDAKASI, J.
2000: December 7, 15
2001: January 10

Criminal Law – Grievous Bodily Harm – Consistent pattern of wife beating over a period of years – Guilty Plea – Good mitigating factors – Suspended Sentence – Criminal Code Act (Ch. 262) s.319, 18, 19.

Criminal Law – Compensation – double compensation considered – cross-customary marriage – compensation only relevant for mitigation.

Criminal Law – Practice and Procedure – Need to call for pre-sentencing report – Community supervision.

Cases Cited:
The State v. Peter Kose Wena [1993] PNGLR 168
The State v. Nickson Pari (No. 2) (unreported and unnumbered) CR 1376/2000
The State v. Rex Lialu [1988-89] PNGLR 499
The State v. Isaac Wapuri [1994] PNGLR 271
The State v. Philip Susuve Raepa [1994] PNGLR 459
The State v. Monja [1987] PNGLR 447
Ure Hane v. The State [1984] PNGLR 105
The State v. Ngetto Rex Rongo (unreported and unnumbered judgement delivered in Lae on the 20th of December 2000) CR 1324 of 2000

Counsel:
N. Miviri, for the State
M. Mumure, for the Defendant

10 January 2001

KANDAKASI, J: The prisoner pleaded guilty to one count of unlawfully causing grievous bodily harm to his wife Nancy Darius. The indictment charging him and on the basis of which he pleaded was presented on the 7th of December 2000.

Following the administration of the allocutus, Mr. Mumure, for the Defendant asked for an adjournment to enable him to prepare and present his client’s address on sentence before sentence as he was just instructed. The State did not oppose that application and the matter was therefore adjourned to the 15th December, 2000.

Address on Sentence

On the 15th December 2000, Mr. Mumure presented his address on sentence going by a written submission filed on the same day. He submitted that any sentence the court may consider giving must be aimed at deterrence and rehabilitation. He also submitted that, compensation within the meaning of the Criminal Law (Compensation) Act 1991 must be considered, which he said was mandatory and referred to the case of The State v. Peter Kose Wena [1993] PNGLR 168. With those submissions I must agree.

I note from a number of affidavits filed and admitted into evidence with the State’s consent, including an affidavit sworn on the 28th September 2000, by the victim the she is from Bukawa in the Morobe Province whilst the prisoner is from Gazelle Peninsula area of East New Britain Province. However, for the purposes of s.4(e) of the Customs Recognitions Act, Ch.19, I note that both of their customs recognize the custom of compensation although the form and amount may vary. The prisoner has paid a sum of K1,000 in compensation to the victim which was over and above the amount he is required to pay under his custom.

On the other hand, the victim’s custom requires the killing of a pig and feasting over it. It is more of a peace ceremony. Through such a ceremony, the prisoner is required to and will promise not to repeat the wrong he has committed against the victim. The victim’s people say that that custom must be followed to bring about lasting peace between the victim and the prisoner. His counsel argues for an order for payment of compensation in accordance with that custom as part of his penalty.

If there were a conflict of customs, then it would be the responsibility of the Court to decide which of the customs is appropriate and applicable and not offending against Schedule 2.1(2) of the Constitution in accordance with s. 7 of the Customs Recognizance Act Ch. 19 and for the purposes of s. 4(e) of that Act.

In the present case I find there is no conflict of custom. There is also no dispute as to the application of the custom of compensation as is practiced by the people of Apo village, Bukawa, Morobe Province. Indeed the prisoner is prepared to pay compensation in accordance with that custom. That is in addition to what he has already paid under his custom.

This raises the possibility of double punishment for the same offence. Customary compensation is recognized by the Criminal Law (Compensation) Act 1991 in addition to and or as part of criminal law sentencing.

The compensation that has already been paid was not out of any compulsion but voluntarily undertaken by the prisoner. He has now also volunteered to pay additional compensation pursuant to the Apo custom in the Bukawa area of Morobe Province. Besides the maximum compensation that can be ordered under the Criminal Law (Compensation) Act 1991 is K5,000.00. The combined effects of the volunteered compensations will not as a matter of fact exceed that limit.

I therefore, consider it appropriate that additional compensation in accordance with the Apo custom of Bukawa, Morobe Province, has to be ordered. As the prisoner is employed, I find that he will be able to find an appropriate size pig to kill and to hold a feast over. That I note will also serve to deter the prisoner from re-offending.

Ordering compensation will have to be in addition to or part of any sentence the case warrants with appropriate discounts for the compensation paid and to be paid.

In The State v. Nickson Pari (No. 2) (unreported and unnumbered) CR 1376/2000, I stated the view that only if an offender personally attends to paying compensation, he would be entitled to argue for that to be taken into account has a factor going in his favour and in his mitigation. But under no circumstances should compensation be a substitute to penalty. This is to avoid wealthy or well to do criminals from buying their way out of their criminal responsibilities and render the whole purpose and or functions of criminal law sentencing useless and or meaningless.

This is why I believe his Honour Amet, J. (As he then was) note in The State v. Rex Lialu [1988-89] PNGLR 499 said compensation is only a relevant factor in mitigation of an offender.

The court was then referred to two cases, The State v. Isaac Wapuri [1994] PNGLR 271 and The State v. Philip Susuve Raepa [1994] PNGLR 459 and it is was submitted that ordering compensation was a form of punishment within the meaning of s.2 of the Code.

The following factors were then advanced as factors mitigating the prisoner:

(a)	he has no prior convictions;
(b)	he pleaded guilty to the charge;
(c)	he has expressed remorse;
(d)	he has paid compensation according to his custom of people of Gazelle Peninsula and was prepared to pay compensation in accordance with his wife’s peoples customs.
(e)	Comparatively the injuries are not as serious as those inflicted to the victims in Philip Susuve Raepa, and Isaac Wapuri’s.
(f)	the victim prefers a non-custodial sentence on terms taking into account the interests and welfare of 3 children born out of the prisoner’s marriage to the victim.
(g)	the prisoner has changed his attitude.

It is argued for the prisoner that, his guilty plea should significantly reduce the sentence. The case of The State v. Monja [1987] PNGLR 447 was referred to and relied on. I accept that submission but add that, as to how much of a proposed sentence should be reduced on account of guilty plea is within a sentencer’s discretion under s.19 of the Code. Over the exercise of such discretion, there may well be difference of opinions because, it is not a matter of mathematics so as to consistently arrive at a set figure. As long as there is a reduction in penalty because of a guilty plea that is what matters and not necessarily the mathematics of arriving at the actual amount of period deducted.

As to what type of sentence is appropriate is an issue that a sentencer has to decide after having regard to all the relevant factors of the case. Guilty pleas do feature prominently in favour of defendants. Then of course, the nature of injuries sustained and the circumstances in which the offence was committed are relevant and important factors for consideration as well.

The principle has been stated in a number Ure Hane v. The State [1984] PNGLR 105 that the maximum prescribed penalty should be preserved for the worse kind of offence or "type of case". Other equally important factors are such as prevalence of the offence and the kind offender, the prisoner or defendant is. Added to that is the purposes of sentencing such as deterrence, rehabilitation or restitution.

Offence & Sentencing Trend

The offence with which the prisoner has been charged with and he pleaded guilty to, is prescribed by s.319 of the Code. It carries a maximum sentence of seven years in imprisonment.

In The State v. Isaac Wapuri [1994] PNGLR 271, the defendant caused unlawful grievous bodily harm to his sister in law. The offence was committed following the victim failing to getting the defendant to have sexual intercourse with him and what the defendant considered to be actions in protest of his refusal, his clothes were scattered all over the place and upon finding that, he hit the victim across the face with a motor vehicle handbrake cable that was there. That resulted in one of the victim’s eyes been injured and render 90% loss of function.

He was given 18 months in hard labour with 5 months deducted on account of time spend in custody. The balance of the sentence was suspended on condition of good behaviour bond and compensation of K500 cash and K800 equivalent in pigs.

In The State v. Philip Susuve Raepa (Supra), the victim was rendered brain damaged out of a drunken brawl and after a skull operation to remove internal bleeding. The Court order K5,000 compensation and place the Defendant on good behaviour bond on his own recognizance with a surety of K300.00 with judgement being deferred to future sittings of the court and for the Defendant to abstain from alcoholic drunk for 12 months until further orders.

Just this morning in The State v. Nickson Pari (No. 2(supra), I imposed a term of 4 years and suspended part of it on terms including good behaviour bond. That was a case in which the defendant shoot at and injured the victim on her left arm in the course of and in furtherance of an armed robbery.

The present case is different to the case cited above. It is one in which there is a consistent pattern of serious wife beating over the period 1993 to the year 2000. The Tusa Private Hospital has furnished reports confirming that and as asked for the full force of the law to be imposed against the prisoner. I consider this very serious.

Taking all of the above into account and to help the Court to determine an appropriate sentence befitting the offence and the circumstances of the case, I requested a pre-sentencing report with specific directions to interview and have inputs from the prisoner’s neighbours and community leaders in the area, and whether they will play any part in the supervision of the prisoner, if the court were to send him back to the community.

Pre-sentencing Report

The requested pre-sentencing report has now been received.

The report confirms the medical evidence of the prisoner consistently beating up his wife severely from 1993 to the year 2000. This goes on almost every week especially when the prisoner gets drunk. The people in the prisoner’s community including his immediate neighbours do not like and do not accept his behaviour. They say the victim is fortunate enough to survive up this time despite the serious beatings she has been receiving to date.

The members of the community indicate that they will be prepared to see and report whether the prisoner complies with any order or direction the Court may give. However, they say, they will not be able to go into his domestic home and stop him from beating up his wife.

The victim reiterates her call for a non-custodial sentence for the sake of the children who need to be supported by the prisoner. Currently, the prisoner and the victim are in a good harmonious relationship. That has been possible because of the prisoner not taking alcoholic drinks.

The report concludes with a recommendation that the prisoner be place on a good behaviour bond for 12 months on terms. It recommends the following terms be imposed:

(a)	a total ban from the consumption of any alcoholic drinks;
(b)	a total ban from ever assaulting or abusing in whatever form his wife and victim;
(c)	the prisoner faithfully attend and actually involve himself in church activities;
(d)	the prisoner pay compensation and or make peace following the Apo custom of Bukawa, Morobe Province.

Sentence

I am very grateful for the report and I take that into account to determine an appropriate sentence in this case. I also take into account the fact that the prisoner pleaded guilty to the charge. I further note that he has no prior convictions and his married with three children who need his support.

At the same time, I take into account the fact that the prisoner has had a consistent pattern of beating up his wife, the victim from about 1993 to the year 2000. Those beatings have been very serious and near death experiences for the victim. Fortunately, the victim has managed to survive all of them up to now. Further I take into account the fact that wife beating is an offence and the community more particularly the women in the country have been consistently calling for all forms of violence against women to stop. This has been expressed through demonstration, radio and TV announcements or programmes.

I have been saying men who beat up their wives, have no respect for themselves, the Christian principles on which our nation is built on and of course of our Constitution which incorporates these principles. Many such actions end up in deaths as in the case the more recent case of The State v. Ngetto Rex Rongo (unreported and unnumbered judgement I delivered here in Lae on the 20th of December 2000) CR 1324 of 2000. In that case at pages 10 to 11, I said these:

I note that the Defendant is a Lutheran Church member. I therefore trust that he will appreciate what the Bible says about husband and wife relations and human relations generally. Without going into any details, when God created man and woman, He made woman a little lower than man by creating her out of the man’s ribs (Genesis 2: 21-23). Women are therefore inherently not stronger than men. Because of that the Bible teaches that when a man and woman get married they become one flesh (Genesis 2: 24). Therefore a man needs to tender and care for his wife as his own flesh. The Bible also teaches that all human kind should love one another for that is the greatest commandment or law of God. Built into that is the commandment which says you shall not kill (Exodus 20: 13). Through our Constitution our country has adopted these very principles. Therefore all citizens of our country and more so those who claim to be Christians should be the last to act contrary to those principles.

Unfortunately, these principles have been over-looked and many people are acting contrary to those principles even by those people who claim to be Christians. This has necessitate the enactment of the criminal laws.

Wife beating is now an offence in our country. This has been brought about because of husbands beating up wives as if they are not more than just more beings fit only to be their wives. Even after the enactment of the laws against wife beating many men are continuing to beat up their wives. Some of the beatings are ending up in deaths. Currently, the women in our country are continuing to call for violence against women and girls to stop. Yet a few men like the Defendant are continuing to beat up and even kill their wives.

These men fail to appreciate the fact that their wives are human beings like them and have the right to live and to be treated with human dignity and respect. They do not appreciate the fact that women are inherently weaker than men and as such they need to be treated with care and respect. Men need to show the women or their wives that they truly love them. If they do not love their wives, they should not have married them at the first place, or if their love has grown cold, they should let them go their own way rather than killing them.

If there are differences in the family or marriage, that should be resolved in a non-violent and orderly manner. If that is not possible, then the Church or community leaders should be called to assist. If through such process, the differences or problems cannot still be resolved, they should agree to go their separate ways because of the irreconcilable differences. Entering into an argument and beating up a wife and or killing her is not the way to resolve family problems. The man as head of the family should show true leadership by acting in a manner that is not violent and treat his wife with respect and care.

To those I add that by their own conduct men who beat up their wives are saying, they do not accept those principles and so therefore, they need to be cast out of our society as unwelcome offending elements of our society and that they need to be locked away for the protection of our society. Thus, unless there are special reasons an immediate deterrent custodial sentence should be imposed.

In the case before me now, I consider it appropriate that a non-custodial sentence with very strict terms as a form of alternative to time in prison should be imposed because:

(a)	of the prisoner’s guilty plea;

(b)	he has no prior convictions;

(c)	he has paid compensation, shown and expressed genuine remorse and is not prepared to re-offend;

(d)	he is prepared to undergo the victim’s customary practice of compensation or restoration of relations and make peace;

(e)	the prisoners innocent children will suffer if he is imprisoned;

(f)	the victim has call for such a sentence with the support of the pre-sentencing report;

(g)	the prisoner is not a danger to society;

(h)	the society will play a part in seeing the prisoner rehabilitate and restrain from beating his wife, the victim.

The sentence is specifically designed for this case and is not intended to be an establishment of a precedent to be followed lightly in all future cases. That is so in the light of what I have said already in relation to the issue of compensation and the offence itself with the society’s reactions to it, especially in the context of wife beating as is the case here.

In all the circumstances I consider a suspended sentence of 3 years appropriate after allowing for time already spend in custody if any provided the prisoner meets the following conditions.

1)	immediately enter into a recognizance with a surety of K500.00 to be of good behaviour bond for the suspended period.

2)	completely abstain from consumption of any alcoholic drinks.

3)	completely abstain from assaulting or otherwise abusing the victim, his wife in whatever form and nature.

4)	Completely abstain from causing disturbance or any form of nuisance to the public or community.

5)	Render free community service of at least 3 hours per week at either the Lae Police station, the Angau hospital or a public institution in his immediate community in Lae which should be supervised by Probation Services in Lae.

6)	Allow Probation Service to carry out regular check ups as to his compliance of these terms and report to this Court on a quarterly basis.

If the prisoner fails to meet any of these terms the suspension of his sentence shall be immediately lifted from the date of non-compliance and he shall be imprisoned at Buimo CIS to serve the balance of the suspended period in hard labour.
__________________________________________________________

Lawyer for the State:			PUBLIC PROSECUTOR
Lawyer for the Accused:		PUBLIC SOLICITOR