N2244

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 55 of 2002

THE STATE

-V-

FREDINAND NAKA PENGE

WEWAK: KANDAKASI, J.
2002: 14th and 24th May

CRIMINAL LAW – Practice and Procedure – Need to hear victim of offence to determine appropriate sentence – Appropriate practice to do justice from the view point of a victim – The victim’s view can be obtained by hearing him or her in Court or through pre-sentencing reports – Means assessment and pre-sentencing report required before any compensation order and community based sentence can be made and imposed – Compensation not recommended but non-custodial sentence recommended by pre-sentencing report- .

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – Means assessment necessary before making any orders for compensation – No means assessment report favouring compensation – No compensation ordered.

CRIMINAL LAW - Sentence – Unlawful assault – Husband assaulting wife following reports of her having an affair with another man caused by the prisoner having an affair and marrying victim’s step sister – Assaults resulting in bruises and swellings only – Guilty plea – First time offender – Relationship with victim and prisoner restored – Victim prefers compensation and prisoner returning to the community to serve is sentence – Pre-sentencing report speaking against compensation and recommending non-custodial sentence - Custodial sentence imposed – Criminal Code ss.340 and 19.

Cases cited:
The State v. Rex Rongo (20/12/00) N2035.
Ure Hane v The State [1984] PNGLR 105.
Goli Golu –vs- The State [1979] PNGLR 653.
Gimble v. The State [1988-89] PNGLR 271.
The State v. Fabian Kenny (16/05/02) CR 281 of 2001.

Counsel:
Mr. M. Rarri for the State 
Mr. D. Kari for the Prisoner 

24th May 2002

KANDAKASI J:	You pleaded guilty to a charge of unlawful assault of your wife Mary Therese Kiawau on 15th October 2001, at Kawanumbo, Wewak East Sepik Province, contrary to s. 340 of the Criminal Code. Upon reading the depositions, which was admitted into evidence with your consent, I accepted your guilty plea and convicted you on the charge presented as the evidence supported that course. 

This was done after my raising with your lawyer the possible defence of provocation as there appeared to be a suggestion that you committed the offence because your wife was having an affair with another man. You lawyer informed me that you were not raising that defence because it could not be legally sustained because you acted on hearsay evidence and in any case what your wife may have done was caused by your first having an affair and marrying her step sister. After a careful perusal of the material in the depositions, I was satisfied that the defence of provocation could not be made out because you did not act in the heat of passion and in any event you set in motion what your wife did. Further, the assaults on the victim were repeatedly executed as opposed to a single blow.

Relevant facts

The relevant facts are straightforward. Sometime between April and May 2001, Zabeth a stepsister of your wife returned from Goroka. As their parents did not have a proper home she was permitted to stay with you and your wife in your house. She was allowed to stay in the kitchen.

Sometime in August 2001, around 8:00 p.m., your wife sat on the step or ladder to the house as she was hot. At that time, you returned from a walk and said you wanted some tea and went into the kitchen area. She then noticed some suspicious movements between you and Zabeth in the kitchen area. So she went into the kitchen pretending to ask for some lime to chew betel nuts. When she asked you for some lime, you became angry and forcefully took her out of the house onto the road and threatened her with a kitchen knife pointed to her throat and ordered her to keep her mouth shut. 

Thereafter, she began to see a lot more things but kept her mouth shut. You brought Zabeth into the family bedroom and shared the bed with her while your wife stayed with your second born child in the same room. Although it is not expressly stated, it is clear from the evidence in the depositions that, there in the bedroom you proceed to have sexual intercourse with the Zabeth in full witness of your wife and children. Not long and your relationship between you and your wife as husband and wife became lesser and lesser while the relationship between you and Zabeth become more intimate. Your wife was relegated to a second wife.

Because of the threats you earlier made to your wife, she did not say a word to anyone about what you were doing. Eventually, it all became too much for her. She therefore, sought help from another man to do some magic to prevent you from marrying Zabeth. That man however exploited that opportunity and had sexual intercourse with him believing that, that he would do the required magic. Thereafter that she went to Wewak and stayed with her aunt and returned home on 13th October 2001.

You found out what she had been up to through a sister. You were not happy with that. So you chased her and threatened her with a bush knife and took her inside the house. You then tied both of her hands and a leg to the back of a chair while her small child was left outside with Zabeth crying. The next day being the 14th of October 2001, you questioned her about the sexual intercourse with the supposed magic man from around 12:30 midnight to around 5:00 a.m. At that time, you subjected your wife to a great deal of beating especially around her breast area and other parts until she was rendered unconscious or could not take it any more and she admitted her sexual affair with the supposed magic man. Later she was taken to the Boram Hospital with assistance and intervention of an aunt of your wife.

At the hospital, she was treated as an emergency patient for pain control due to your beatings. She was noted to have a very swollen and bruised face, with two heavy black eyes. She had an assortment of wheals and bruises in all parts of her body. There was much concentration in her breast area, which resulted in the breasts being tensed, swollen, bruised and very painful. The medical report concluded that the attack on your wife was calculated and vicious. She appears to have recovered well from those injuries. 

In an affidavit purportedly deposed to by your wife on 12th December 2001, she speaks of not having had any intention of proceeding with the charge against you because she has forgiven you. But the original of that affidavit refers to her assailant as Kiawau Niaka. In a copy of that document, that name has been changed to Fedinan Naka Niaka. There is no dispute that the affidavit concerns the case against you.

I asked your wife as to whether she would accept compensation as part your punishment for the offence with community service orders. She said she would accept such a sentence. There is however, no evidence to show that no force was involved to secure that position from your wife.

I adopted that practice to ascertain the victim’s wishes in relation to the kind of punishments she would prefer see you receive. I consider doing that important in the interest of doing justice not only from an offender like you and the community perspective, which is traditionally the case, but also from the perspective of a victim of a crime. Of course, the down side to that might be that a victim may be driven by retaliation more than not, or that he or see may not necessarily have the confidence and or the security to give his or her true position. This can be taken care of by a careful assessment of what a victim may say as against the need to treat the offender fairly bearing in mind the purposes of criminal sentencing. That process can be assisted by a pre-sentencing report that has inputs from all of these perspectives. 

Given the victim’s preference of a sentence that includes compensation and a non-custodial sentence, I requested a pre-sentencing report as well as a means assessment report in accordance with the requirement of the Criminal Law (Compensation) Act 1991. I have now received only a pre-sentencing report. That report is based on the author’s interview with you, your wife, an uncle of yours and your mother. No independent person, such as a community leader or other people with standing in the community has made inputs into the report. I therefore do not consider the report balanced and reflective of the community’s position in relation to either a compensation order or a non-custodial sentenced. The report does not indicate why you wife has change her indication in Court that she would prefer compensation as part of your punishment to preferring only a non-custodial sentence. 

In The State v. Rex Rongo (20/12/00) N2035, I rejected a pre-sentencing report that had no input from independent members of the community. I did that because of the tendency in human beings to speak only in support of their relatives or friends especially, when they know that whatever they are going to say will affect the freedom of persons like you. In order for a pre-sentencing report to be truly reflective of the community’s position there must be inputs from people having no personal interests in the sentence a prisoner should receive as well as inputs from family members and relatives who have such interests. A report without such inputs is therefore unreliable in my view. That is why I reject the report in the case cited and for the same reasons I do likewise in your case.

The offence and sentencing trend

You have been charged under s. 340 of the Criminal Code. That provision reads in these terms:

"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."

There is no Supreme or National Court judgement under this provision. This is most probably due to the fact that the offence is prescribed as a misdemeanour. As such, they have been dealt with mainly in the lower courts. 

In the absence of any case providing any guidance as to the factors that must be consider before sentencing for an offence under this section, I am of the view, that the factors that must generally be taken into account before sentencing in other cases applies. This of course, include principles such as, the maximum prescribed sentence must be preserved for the worse type of the offence under consideration: see cases like Ure Hane v The State [1984] PNGLR 105 and Goli Golu –vs- The State [1979] PNGLR 653 for examples of authorities on this point. Whether the verdict on guilt is after a trial or on a guilty plea is a relevant consideration too. The gravity of the offence, having particular regards to the circumstances in which it was committed is also a very relevant consideration: see Gimble v. The State [1988-89] PNGLR 271 for examples authorities on this. Two other factors appear clearly as factors that must be considered. The first is that of whether the offender is a first time young offender or has a prior conviction. The second is the prevalence or otherwise of the offence. The listing of these factors is by no means exhaustive. Other factors that are considered relevant in the particular circumstances of a case may be taken into account as well.

Your case

In this case, I note that you are a first time offender but not a young offender as you are married with children. You pleaded guilty to the charge, a position you maintain as soon as you were arrested. This has saved the State and this Court substantial time and money that could have been spent to secure your conviction. You said sorry and have asked this Court to place you under a good behaviour bond or probation. However, I note that this is not accompanied by anything meaningful or tangible to show your remorse to the victim of your crime. For instance, there is no evidence of you having said sorry to the victim and having paid compensation not only to the victim but her relatives for the wrongs you committed against them in dealing with two sisters in the way you have. As I said in a number of cases already with the latest in this circuit in The State v. Fabian Kenny (16/05/02) CR 281 of 2001 (unreported and unnumbered judgement delivered on 23rd May 2002), a mere expression of remorse unaccompanied by anything tangible is worthless. It means nothing and a Court should not take such utterance into account in favour of a prisoner. So this factor operates against you.

There are other more serious factors operating against you. Firstly, the offence of wife beating is a prevalent offence in the country. A few years ago women’s groups and the Law Reform Commission made repeated calls and handed out leaflets and posted posters in prominent places calling for an end to this kind of offences. Despite that, the instances of wife beating are continuously committed in increased numbers through out the country. It therefore, calls for an immediate custodial sentence to serve both, as a personal and general deterrence for other would be offenders. The circumstances in which you committed this offence, is in my view, in the worse type of a case for an indictment presented under s. 340 of the Code. You did the most unthinkable for ordinary people in society in a country like Papua New Guinea when you started having an affair with your sister in law. Once your wife found you out, you used a dangerous weapon and threatened her and by such conduct allow her to accept your affair into even the family bedroom. There you did not observe the sacredness of the family bedroom and you proceed to conduct your sexual affairs with your in law in full witness of your wife and children. You spent more time with your new love so to speak and less with you legal wife and children.

Your wife was forced to bear the unspoken psychological pain and suffering this may have caused her for sometime until she could not bear it any longer. She was forced to go to a man who exploited her plight, forced upon her by your own conduct. That man sexually exploited her in the process. You obviously did not accepted responsibility for that. You did not accept that it was caused by your own conduct. You however, proceeded to treat her as if she was the cause of what she did. After mentally and psychologically torturing her, you then subjected her to actual physical torture or harm. You tied he up by both be her legs and hands and proceeded to interrogated her the next day during a very odd time of the night hours 12:30 to 5:00 a.m., when most people have good deep sleeps. You beat her on her breasts mainly and other parts of her body until she was rendered unconscious. She was subjected to great pain requiring emergency medical intervention to assist.

In short, you subjected your wife to a number of punishments after having started your relationship with Zabeth. First, you tortured her mentally and psychologically by taking Zabeth into the family bedroom and proceed behalf like husband and wife in full witness of your wife and your children. Secondly, you forced her to be exploited by the supposed magic man sexually. Thirdly, you tied her up like a slave or an animal and the next day physically assault her picking on parts that would cause her much pain for about 5 hours in the night until she was rendered unconscious. 

It is your kind of conduct that is breaking the good fabrics of our society. In laws are respected in nearly all societies in the country. They a respected more than abused or exploited. When people engage in the kind of conduct you got yourself into, it amounts in my view, to an abuse of the relationship and a breach of the trust that normally exists between in laws.

It is the families with the extended good trusting relationship between in laws that leads to a strong family and a community out of which a country is built. A commission of an offence in these kinds of circumstances not only threatens the family unit and the extended family built around it but the community and the country as a whole. This is because as I already said, it threatens and in most cases breaks up families with innocent children being forced to bear the consequence of not having a good family, and therefore a good community.

Considering all of the above, I am of the firm opinion that your conduct falls into the worse kind of wife beating there can be under section 340 of the Code. This warrants an imposition of the maximum prescribed sentence of three years. That is for your personal as well as a general deterrence for other would be offenders from committing this kind of offences in future. In my view, this out weighs the need for any reduction of sentence from the prescribed maximum penalty on account of your guilty plea and you being a first time offender. You are fortunate that you have not being charged with a more serious offence such as attempted murder or something closer to it, which carries higher penalties.

In the end, I impose the maximum prescribe sentence of 3 years in hard labour. Of course, the period of almost 6 months you have already spent in custody will be deducted from that sentence. It will leave you with the balance of 2 years 5 months yet to be served. I order that you serve that term in hard labour at the Boram CIS.
________________________________________________________________________
Lawyers for the State:			The Public Prosecutor
Lawyers for the Accused:		The Public Solicitor