N3156

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 642 OF 2006

STATE

v

INGE GOTAMA

Finschhafen: Kirriwom, J
2006: 4th & 5th October

SENTENCE – Grievous bodily harm – Prisoner assaulted and wounded cousin with bush knife whilst under influence of alcohol – Prisoner opposed new religious group in village – Victim fully recovered – Need to restore good relations – Prisoner spent six months in custody awaiting trial – sentenced to 12 months taking into account time spent in custody as sentence served – Balance of six months suspended on conditions of good behaviour bond of 12 months and payment of compensation of K400 and one (1) live pig to the victim within four months. 

Cases cited

The State v Isaac Wapuri [1994] PNGLR 271
The State v Frank Isaac Pologo [2004]
The State v John Pints [2004]
The State v Gail Sinali [2004]
The State v Jenny Walker [2004]
The State v Eric Guaf and Boano Guaf [2005]

Counsel

N. Miviri with J. Done, for the State
C. Koi, for the Accused 

DECISION ON SENTENCE

5 October, 2006

1. KIRRIWOM, J:	Inge Gotama of Siucko village, Finschhafen, Morobe Province pleaded guilty to unlawfully doing grievous bodily harm to one Samuel Iwais on 23 December, 2005 at Siucko village. The charge is laid under section 319 of the Criminal Code. 

2. There is not much dispute on the facts. The prisoner went home on the day in question after having had some drinks at Gagidu Town with friends. There was a crusade in the village by a new religious group, namely the Assembly of God, which had been going on for a week but did not go down well with the prisoner who is a Lutheran. As the Lutheran missionaries landed in Finschhafen first before the rest of Papua New Guinea, it would be safe to assume that the predominant religion in the prisoner’s village at the particular time of this trouble would no doubt have been and is Lutheran. 

3. The prisoner, who was opposed to this new religious group in the village on the night of their crusade, showed his opposition by cutting down his banana trees beside his house and at the same time proceeded to demolish his own house. The victim who was also related to the prisoner as a cousin approached him and tried to calm him down and held onto him to stop him from causing further damage. However the prisoner became abusive and used foul language so the victim pushed him away. 4. The prisoner then raised his knife to attack the victim who then began to run but somehow tripped and fell to the ground. While he was on the ground the prisoner swung his bush knife down at the victim and cut him on his forehead. The cut on the forehead measured 8 cm across the frontal skull. The victim was admitted at Butawen Hospital and successfully recovered a week later and was discharged. 

5. The maximum penalty for this offence is seven years imprisonment. Counsel for the prisoner referred me to The State v Isaac Wapuri [1994] PNGLR 271 where Kapi DCJ (as he then was) sentenced the prisoner to 18 months imprisonment which he suspended on 12 months good behaviour bond after deducting five months for re-trial custody and at the same time ordered him to pay compensation under the criminal law Compensation Act of K500 in cash and five live pigs valued at K800.00. The prisoner assaulted his cousin’s wife with a vehicle hand-brake cable across her face which caused permanent damage to her left eye resulting in 90 percent loss of vision. Imposition of suspended sentences on conditions of good behaviour and payment of appropriate compensation is to foster the concept of restorative justice. 

6. There is a long line of cases dealt with in recent times where the objective of sentencing was focused on restorative justice. The aim of restorative justice is to reconcile the parties so that previous good relations between them are restored. Some of these cases that came before me include The State v Frank Isaac Pologo [2004] where I imposed a suspended sentence of 12 months on condition of payment of compensation where son attacked father with bush-knife over a domestic conflict, The State v Eric Guaf and Boano Guaf [2005] a sentence of 12 months was imposed on unrepentant prisoners but suspended on condition of payment of compensation to the victim, The State v John Pints [2004] a sentence of 12 months imposed on a jealous husband who attacked his wife when intoxicated with the blunt head of an axe on suspicion of infidelity but suspended on condition of payment of compensation and The State v Gail Sinali [2004] where a sentence of 12 months was also imposed on a jealous wife who attacked her husband’s girlfriend with a sharp knife but wholly suspended on the condition of payment of compensation. Also in the same period I imposed a sentence of four years on the prisoner in The State v Jenny Walker [2004] where the prisoner badly chopped up her cousin sister with a bush knife all over her body almost mutilating her for having extra marital affairs with her husband which ruined her happy marriage.

7. The victim in this case is the prisoner’s own cousin. He is desirous of restoring this relationship by payment of compensation of K500 and two pigs and he wants at least four months to do this. The prisoner spent six months in custody and then escaped to his village. He was recaptured not long ago and returned to custody from where he now appears. 

8. He is in his thirties and married with two young daughters who now live in the village with his parents. He has had primary education and was a villager at the time of this trouble. He is a man of exemplary good record and a strong follower of the Lutheran faith. 

9. I heard him on allocaturs and I accept he was sincere in his remorse for his action. I accept his plea of guilty which is reflected by his own surrender to the police following this incident and his subsequent cooperation with them leading to this charge being laid against him. 

10. The prisoner’s reaction is the dark side of s.45 of the Constitution which guarantees Freedom of Conscience, Thought and Religion. The Constitution says that every person has the right to freedom of religion and the practice of his religion and beliefs in such a way as not to interfere with the freedom of others. New religious groups or sects trying to manifest and propagate their religions and beliefs over Christians of other established charges could easily fall prey to interfering with the rights and freedoms of those already practising Christians and tantamount to violation of the Constitution itself. There is a need for a closer look at this provision of the Constitution. There must be some control measures put in place by way of legislative enactment on the activities of new religious groups emerging that respect no boundary or territory and some even propagate disunity in or with the old churches. 

11. This is a classical example of s.45 being used as a vehicle or weapon to create unrest and instability amongst followers of Christian churches. There are enough religious wars going on in the world today such as Catholics and Protestants and Muslims and Christians and we cannot allow this to happen in a small country like Papua New Guinea. 

12. I bear this consideration in mind when sentencing the prisoner for his wrongdoing. This is not a worst case like that of The State v Jenny Walker (supra). The injury received by the victim had healed although he carries a scar. That will in time disappear. The prisoner’s reaction was not motivated by greed, selfishness or general disregard for another’s right, he was protecting his own interest in his own community against another group that appeared without there being any permission sought or granted according to him, rightly or wrongly. However, because he did not have the courage to raise his concerns while in sober state, he had to inebriate himself in order to show his feelings. Be that as it may, probably this injury might not have come about if the prisoner was left alone. The victim may have added fuel to the fire by intervening in his private affair. 

13. In all the circumstances, I sentence the prisoner to 12 months imprisonment. I deduct six months already spent in custody. I suspend the balance of six months on him entering into his own recognizance to keep peace and good behaviour for 12 months. In addition, I order the prisoner to pay compensation to the victim in the sum of K400 and one live pig within four months from his release from prison. This gesture of reconciliation must take place in the presence of the District Administrator or his delegate who shall forward a copy of receipt and an Affidavit or statutory declaration form deposing to this event to the court.

_____________________________________

Public Prosecutor: Lawyer for the State 
Paul Paraka Lawyers: Lawyer for the Defence