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State v Vail [2003] PGNC 25; N2473 (4 July 2003)

N2473

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 1155 OF 2003

THE STATE

-V-

ANTON VAIL

KOKOPO: Lenalia, J.
2003: 2, 4 July

Counsel:
Ms. Shirley Luben, for the State
Mr. Michael Peter, for the Accused

4 July 2003

SENTENCE

LENALIA, J. The accused was convicted upon his plea to one charge of unlawfully causing grievous bodily harm to his wife Maria Anton contrary to s. 319 of the Criminal Code.

The facts of this case are straightforward. On Friday 13th January 2003, the prisoner and his wife were invited to attend a dance held at Hamamas Hotel in Rabaul because they were invitees. There was an agreement between the prisoner and the victim that they both should attend the dance. However, there was a feast being attended to at Pilapila village and instead of the couple attending the dance together, the prisoner attended the feast leaving the victim to go alone to the dance at Hamamas Hotel.

On the early hours of the next day namely 14th of January this year, between 1 and 3 am in the morning, when the prisoner got back from the feast and by which time, the wife who is the victim was already in their home commenced asking the victim if she ever danced at Hamamas Hotel. Frankly, the victim answered and said, she had been engaged in gate-takings that night but because she got tired, she got herself into the dance hall and danced with others.

After having heard this, the prisoner got furious and started to get cross and an argument developed after which the prisoner punched or slapped the victim following which he took a piece of wood and hit the victim’s right forearm causing it to fracture.

The victim was medically examined following the assault and the doctor found that there was blood on the right ear with a laceration on the wall of the ear canal. The X-ray of the right forearm revealed a fracture with no displacement. She was also treated for facial injuries and noted to suffer painful left jaw and bleeding from the right ear. For her to fully recover she had to take chloramphenicol for two weeks and the right forearm had to be kept in "POP" for six weeks.

In the prisoner’s statement pursuant to s. 593 of the Criminal Code, he said the reasons for him getting cross with the victim was because, she had dance with other people that night.

On behalf of the prisoner, the Court take into account the following mitigations:

- his guilty plea
- his lack of previous convictions
- he cooperated well with the police.

Apart from the above factors, the prisoner said in allocutus that, his five children are with him and he is alone responsible for the up-bringing of their children and his wife had left him and now residing in Nonga with her relatives. This is, confirmed by defence counsel.

Ms. Luben submitted that this case involves wife bashing and the Court ought to take this into account. Certainly, I take that fact in account.

The maximum penalty prescribed by s. 319 of the Code is seven years imprisonment. The Court has jurisdiction pursuant to s. 19 of the Code to sentence to a lesser term and any of the types of punishment specified under that section. This shows this offence is serious. The victim in this case received a fractured forearm on her right hand, which was nursed for some six (6) weeks.

Taking into account the accused guilty plea and other mitigating factors mentioned on behalf of the prisoner by his counsel and the serious nature of this offence, I come to the conclusion that the Court should impose a conditional suspended sentence as I consider that if a term of imprisonment was to be imposed would caused further injustice and inconveniences to the five children who are all attending school.

Having said this, the prisoner is sentenced to a term of three years imprisonment in hard labour. This sentence is suspended on the following conditions.

1. You shall pay a sum of K600.00 compensation to the victim within 14 days.

The bail moneys shall be converted into part-payment of this order.

2. That you shall enter into a recognizance to keep the peace and be of good behaviour for three years.
   

The Court orders that the compensation moneys shall be paid into Court in the Registrar’s account.
___________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor