N2175

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 45 of 2002

THE STATE

-V-

ALBINA SINOWI

WEWAK: KANDAKASI, J.
2001: 12th and 13th December

CRIMINAL LAW - Sentence – Unlawful wounding causing bodily harm to co-wife – Victim leaving her children with prisoner on more than one occasion each time getting angry and run away with money meant for the family – Prisoner forced to feed children and family from her own efforts – Victim hit once with iron rode – Fracture to left ulna – Guilty plea – First time offender – Customary Compensation of K1000.00 paid to victim – Since commission of offence victim and prisoner living together in one house without any difficulty – Expression of genuine remorse – 6 months suspended sentence imposed – Criminal Code ss. 340 & 19.

Cases cited:
The State v. Ngetto Rex Rongo (unreported judgement delivered 20/12/00) N2035
The State v. Maria Er N 1749

Counsel:
M. Ruarri for the State 
G. Korei for the Accused

DECISION ON SENTENCE

13the December, 2001

KANDAKASI J: 	You pleaded guilty yesterday to one count of unlawful assault of one Helen Sinowi, who is your co-wife (that is you and the victim are married to the same husband, Mr. Sinowi) contrary to s. 340 of the Criminal Code. 

The Facts 

The offence was committed on the 10th of June 2001. It took place at Koiruo Camp, Kaindi, which is not far from here. You were angered by Helen Sinowi who is your husband’s second wife when she left the third time with 5 of her children including an a baby for you to take care of following an argument with the husband. On two occasions before, she did the same after she had an argument with the husband. On each occasion she left no food for the children. She simply did not care and left the children. You therefore took on the responsibility of look for food and feed the family and nurse the small baby.

The husband did nothing to stop Helen Sinowi from her conduct. You therefore, decided to teach her a lesson on the third occasion. So when she came home from her village early in the morning, you start a fight with her. In the course of the fight, you picked up a piece of iron that was there and hit Helen Sinowi on her left forearm. That resulted in a fracture of her left ulna. Medical evidence confirms the broken arm and its treatment. 

Helen Sinowi reported the assault on her to the police sometime later. On the basis of her report, you were arrested. Subsequently, you were released on bail and have since been living together with Helen Sinowi in the same house with the same husband. You have paid for the assault on her by a payment of K1, 000.00 in compensation.

The Law
 
The offence of unlawful assault and its penalty is prescribed by section 340 of the Criminal Code. It prescribes a maximum penalty of 3 years imprisonment subject to section 19 of the Criminal Code. The section reads:

"340.	Assaults occasioning bodily harm.
(1)	A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.
Penalty:	Imprisonment for a term not exceeding three years.
(2)	[Repealed.]"

My limited research for cases on this section has not been able to produce a case. This does not mean that the Courts have not come to deal with it in the past. It seems however that, a Court is yet to lay down some guidelines for these kinds of offences. I will attempt to do that here. But before I do that, I accept Mr. Korei’s argument that, the maximum sentence of three years imprisonment should be reserved for the worse kind of unlawful assault. There are numerous authorities for that. I discussed some of them in The State v. Ngetto Rex Rongo (Unreported judgement delivered on 20/12/00) N2035, at pp. 3 – 6. I need not repeat the discussion here save only to acknowledge the existence of such authorities.

As with any other offence, the offence of unlawful assault causing bodily harm has its own categories. Up on the top of the scale would be cases in which there are multiple acts of assault with serious bodily harm but falling short of grievous bodily harm cases. Next to that would be cases in which there is say, a single act of assault resulting in a closer to serious bodily harm to the victim. Following this category of unlawful assault resulting in bodily harm, would be cases in which there is an act of assault resulting in a very minor bodily harm.

Of course, whether an offender should be given the maximum prescribed sentence would also depend on the particular facts of the case and whether or not the offender has any prior convictions. If the offender has a prior convict and he or she is found guilty after a trial and his or her case falls in the worse category, that may attract an imposition of the maximum penalty of three years imprisonment. If however, the offender pleads guilty and has no prior convictions, a lower sentence may be appropriate.

I consider it also important that a sentencing judge should have regard to the type of sentences being imposed in similar but more serious offences such as unlawful assault resulting in grievous bodily harm. This is important because going by the scheme and intent of the legislation, Parliament in my view, intended that the more serious an offence is, the higher the penalty should be. It follows therefore that, a sentencing judge should not impose a sentence in an unlawful assault case which is higher or equivalent to a sentence for an offence such as unlawful assault causing grievous bodily, which is a more serious offence then an unlawful assault causing only bodily harm.

For the purpose of the case before me, I note the case of The State v. Kopiwan Pupuni (Unreported but numbered judgement) N1709, is similar to the present case although that involved a charge of unlawful assault resulting in grievous bodily harm. In that case, the offender used a bush knife to seriously assault a mother and daughter victims. The daughter was struck with the bush knife on her left leg and another to her neck area. The mother was struck with two strikes each over her head and her hands. Medical evidence confirmed a number of lacerations and a fractured skull.

The assault was committed suddenly in circumstance when they were least expected. The victims were accused of having burnt down their assailant’s house. The allegation was to be resolved at the community level that day with the assistance of the community leaders. Before attending to that, the victims were invited to have breakfast with their community leader. Whilst they were having their meal, their assailant appeared suddenly and proceeded to commit the assault on the victims.

The National Court sentenced the prisoner to two years in light labour. In so doing the Court noted that the prisoner pleaded guilty to the charge and was a first time offender. The Court also noted that the prisoner had already paid compensation to her victims.

In your case, you appear to have struck your victim, Helen Sinowi once. This resulted in a fracture injury to her left hand. The medical evidence is only preliminary. It is not clear whether she recover fully or not. The State had the burden to show whether the victim fully recovered. There is no evidence to suggest that the victim has not fully recovered. In these circumstances, I will assume that the victim has fully recovered from the injury. Clearly therefore, your case does not come closure to the case of The State v. Kopiwan Pupuni (supra). I note that case was more serious than your case.

Next, I note that you pleaded guilty to the charge against you and you have no prior convictions. Further, I note that, although not in the legal sense, you were caused to assault the victim by her conduct. However, this does not mean that, it was all right for you to assault her in the way you have. The law prohibits this kind of conduct on your part. That is why it is an offence to assault another person. The law and the society we live in expects us to resolve our differences in a peaceful manner. At the village and community level, we have peace officers and village court magistrates and councilors to help resolve problems such as the one you had. Then at the district level we have District Courts followed by the National Courts at the national level are there to deal with such problems. In addition to these avenues, we also have the social welfare offices. These are the places people with problems like the one you had with your co-wife should go to for a peaceful resolution of their problems. You did not use any of these avenues. Instead you took the law into your own hands. That is why you are in court today.

I also note that your problem was also brought upon you by your husband, Mr. Sinowi for marrying the second wife and the victim of your offence. This case is a demonstration of the problems that can arise in the family where a man marries and or has more than one wife. Such men create problems for women like you. It follows therefore that, they must take the lead to ensure both or all of their wives and their children are happy and that they do not fight each or that one does not become a problem to the other. If a man is not able to keep all of his wives and children happy, he should not marry more than one wife. Presently there are calls for an end to polygamy or marrying more than one wife. Cases like this demonstrate the need to enact such laws. The Papua New Guinea Law Reports are filled with cases some of them tragic caused by such polygamous marriages. See the case of Regina v. Kambe-Pare [1965-66] PNGLR 321 for a much earlier example and Agua Bepi v. Aiya Simon [1986] PNGLR 233, for a later example. The duty is on Parliament now to enact such laws quickly for the security, peace and harmony of our society. There should really be no difficulty in Parliament enacting such laws promptly has as been recently demonstrated in the NCDC case and the amendments to the National Gaming Board Act. The call for such laws to be enacted has been around for a long time and is yet to be enacted. In the absence of any suggestion to the contrary I believe the reluctance of Parliament enacting such a law is because Parliament is dominated by men who rather prefer to have more wives than just one. They appear not to care about the problems polygamy brings upon a family and the society as a whole. If they still wish to allow polygamous relations they could enact laws to punish those men who are not able to maintain peace and harmony between himself and his wives, between the wives and the children of such marriages.

Until such laws are enacted men are under a social and moral obligation, in my view, not to marry more than one wife unless, he is able to keep all of his wives and children happy in a society like ours which is moving fast into the modern world. I note that custom in some societies in our country does allow for a man to marry more that one wife. That was so in most cases to allow for the production of more children given the risk of death for most children due to lack of appropriate medical services. The situation in most societies in our country today is not the same as in the past. There are comparatively better health services to save guard against the early death of children. At the same time, the pressures of the modern economy are hitting hard on families. The bigger a family is the harder it is to survive. Your case is a demonstration of the later situation. Your family lives not far from the Wewak Township. The burden or the need to feed all of your children and that of your co-wife’s angered you. There was not enough money and food for you alone to cater for all of the children and yourself without the help of you co-wife. Your husband created the problem both for you and your co-wife in marrying her at the first place after you. He then failed to adequately provide for the family or if not adequately keep both yourself and your co-wife happy and keep you and your co-wife’s children properly fed.

To some extent, I am of the view that, your co-wife and victim could have contributed to her own injuries. First, she chose to marry you husband who was already married to you. She therefore knew or ought to have known that there was bound to be trouble because of the fact that she was becoming a second wife to your husband. Generally wives in a polygamous marriage do not often get along together expect in one or two exceptional cases. Children of such marriages also often have conflicts disagreements and disputes over limited family properties or assets. 

Secondly, she conducted in a manner that angered you. She had done that on two occasions before. Your husband who was responsible for getting you two under the one roof did not do a thing to prevent your co-wife from conducting in that way. Also he failed to take any step to prevent you from getting into the kind of trouble you got yourself into. So you decided to teach her a lesson. But as I said already, the law does not allow what you did even though you may have had a good reason. That is why you are in Court today.

Taking to account all of the above, I am of the view that it would be most unfair for this Court to give you a custodial sentence, which would turn out to be severe on you. It would also be unfair for one of your child who I am told, is breast-feed still. Since being charged and release on bail, I note you paid compensation and you are now leaving peacefully together with your victim in the same house. It is inappropriate for this Court therefore to interfere with the reconciliation that has already taken place and make the situation harder than it has already been for you. I therefore, sentence you to a term of 6 months, which shall be suspended on the following conditions:

1.	You undertake to keep the peace at all times and be of good behaviour for a period of 6 months from today;
2.	If you are provoked either by your co-wife or anybody you report that to the community leaders or the police for appropriate action.
3.	Your K200.00 bail will be converted into surety for keeping the peace and observing the terms of this order.
4.	Upon the expiry of the 6 months suspended sentence, your K200.00 shall be refunded.
5.	Any breach of the above terms shall automatically result in you being imprisoned for the then remainder of the 6 months.
______________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor