N3306

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 30 of 2007

THE STATE

-V-

AMBE TU

Tabubil: 	Kandakasi, J.
2008: 4 & 11 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence - Grievous bodily harm – Victim run away wife leaving husband with children – Victim having relationship with another man – Non legal provocation – Multiple cuts to victim’s body including both hands – Injuries life threatening – Victim left with serious disability in the use of both of her hands - Guilty plea – First time offender – Prevalence of offence - No compensation paid – No pre-sentence report - Custodial sentence appropriate – Sentence of 4 imposed – Criminal Code s. 319. 

Cases cited:
The State v Vincent Naiwa (22/06/04) N2710.
The State v. Isaac Wapuri [1994] PNGLR 271.
The State v. Philip Susuve Raepa [1994] PNGLR 459
The State v. Nickson Pari (N0.2) (10/01/00) N2033.
The State v. Rueben Irowen (24/05/02) N2239.
The State v Henry Idab (17/12/01) N2172
The State v. Eddie John Naopa (24/04/03) N2411
The State v. Tamumei Lawrence, Koloata James and Tobia Thomas (08/02/07) N3117

Counsel:
 J. Kesan, for the State.
P. Kapi, for the Accused.

11 March, 2008

1.	KANDAKASI J:	You pleaded guilty to a charge of causing grievous bodily harm to your wife, Helena Skwin on 18 March 2007 at Grengas Corner, Kiunga, Western Province. 

2.	Following your guilty plea, the State admitted into evidence, with your consent, the District Court depositions. Having read the depositions, I was satisfied that, there was sufficient evidence supporting the charge and your guilty plea. Proceeding on that basis, I accepted and confirmed your guilty plea and had you convicted on the charge of grievous bodily harm as presented under s. 319 of the Criminal Code. I then invited you and the State to address the Court on sentence and you both did. After that, I reserved a decision on your sentence to today. This constitutes the Court’s decision on your sentence.

Relevant Facts

3.	Before anything else, I turn to consideration of the relevant facts. You have been married to your then wife and victim Helena Skwin since 1992. Problems between you and her arose over your wife running off with another man leaving you with your two children. Your wife was at the relevant time, living with her sister at Grengas village. After taking care of the children on your own for a number of months, you went over to where your wife was on 18 March last year. When you got there, you questioned your wife as to why she left you. An argument between you and her developed which caused you to be angry, given the circumstances in which she had left you and the children. That caused you to get hold of a bush knife that was there and cut your wife repeatedly on her back and neck areas and her hands, causing multiple cuts and wounds with two large and deeper wounds on her shoulder area. You also cut both of her hands with a complete amputation of left thumb and her right inner wrist area separating the tendons, nerves and the ulna artery. That wound measure 6 cm x 1.5cm wide. All of the wounds you caused your victim caused her to bleed and lost a lot of blood causing her to collapse eventually. 

4.	Some people helped the victim to the Kiunga hospital. That hospital had her transferred to the Tabubil General Hospital because the injuries were serious requiring higher medical intervention. There, she received appropriate medical treatment and later discharged after three days of hospital admission. On her discharge, the victim was left with residual disabilities to the use of both of her hands. The medical report from the Tabubil Hospital states that the injuries you caused the victim were life threatening.

Offence and Sentencing Trend

5.	Section 319 of the Criminal Code creates and prescribes the penalty for the offence of grievous bodily harm. This provision provides for a maximum penalty of up to 7 years. A number of judgments have already dealt with offences under this section before imposing a variety of sentences from a few months to the maximum of 7 years.

6.	I noted in a number of my decisions, as in The State v. Vincent Naiwa, that the earlier cases such as The State v. Isaac Wapuri and The State v. Philip Susuve Raepa imposed much more lenient sentences. Those decisions date back more than ten years. Since then however, the offence has not declined but has increased over the years. Given that, sentences have increased to correspond with the increase in the offence. 

7.	In 2003, noting the prevalence of the offence and forming the view that past sentences appeared not to deter other persons from committing this offence, I imposed a sentence of 4 years part suspended on terms in The State v. Nickson Pari (No.2). That was in a case of young first time offender pleading guilty. He shot at and injured the victim on his left arm in the course of and in furtherance of an armed robbery. 

8.	A more serious case of grievous bodily harm I dealt with was in the case of The State v. Rueben Irowen, which case your lawyer has referred to in his submission. In that case, the prisoner forced his two wives to strip down naked and effected serious bodily harm to them. That included the use of a bush knife to inflict serious cuts to their bodies resulting in the loss of a lot of blood rendering both of them unconscious. They had to run out of the house naked for help. If it were not for their running out and the help of third parties, they could have died. I imposed the prescribed maximum sentence of 7 years each for the harm he had occasioned to the victims for him to serve cumulatively.

9.	Another serious case that I also dealt with and also referred to by your lawyer was the case of The State v Henry Idab. In that case, a group of men attacked another group mistakenly taken to be the ones responsible for verbally abusing one of the attacking group member’s mother. In the process, a village court magistrate sustained serious bush knife injuries to both of his hands, resulting in an estimated 85% loss of efficient use of his hands and restricted to only light work. I imposed a sentence of 5 years, and suspended part of it on strict terms including community work. I also allowed at the discretion of the village court magistrate, room for the prisoner to render services free of charge to his victim appreciating that the victim was prevented from using one of his hands.

10.	In another case, namely, The State v. Eddie John Naopa, I imposed a sentence of 5 years part suspended because of a guilty plea and an order for compensation. The victim in that case lost one of her eyes completely from a slingshot. 

11.	Finally, in The State v. Vincent Naiwa, I imposed a custodial sentence of 5 years. That was for grievous bodily harm caused to his sister–in–law by the prisoner. He used a bush knife to do that. There was no good reason for the attack. The attack on the victim left her left hand useless. That was on a guilty plea by a first time offender, who had not paid any customary compensation and did not have any means to pay if the Court were to make such an order. 

12.	I note that other judges have imposed higher penalties in cases similar or closer to your case. An example of that is the decision of Lay J., in The State v. Tamumei Lawrence, Koloata James and Tobia Thomas. There, the victim had been gardening and the offenders and their friends attacked him without provocation. The victim suffered serious knife wounds. His left upper arm was cut through to the bone, the back of the left shoulder involving the shoulder joint was cut, there were cuts to the posterior upper right chest and the right forearm involving the elbow. There was a prompt compensation payment.

13.	I noted in a number of my decisions on grievous bodily harm cases and noted that the offence was prevalent for no good reasons or for silly reasons or clearly avoidable situations. In most cases, offenders were carelessly using dangerous weapons such as bush knives and such other dangerous weapons to resolve problems even in close family relations. 

Sentence in Your Case

14.	Bearing the above sentencing trend in mind, I now need to determine the issue of what is an appropriate sentence or punishment for you. In order to determine that question, it is necessary for me to take into account what you said in your address on sentence, your lawyer’s submissions and the factors that are in your favour as well as those against you. 

15.	I turn firstly to your address on sentence. In your address on sentence, you said sorry for doing what you did to the victim, her family and the court. Your lawyer then added that, you are aged 55 years and come from Grengas village in Kiunga, Western Province. You are married with 2 children from the victim, aged 18 and 12 years. You have no formal education and employment. You are thus a subsistence style dweller. You have been in custody since 8 March 2007. 

16.	In your mitigation, your lawyer has submitted and I accept that, you pleaded guilty to the charge. That saved the State and Court much time and expenses of running a trial to establish your guilt. Secondly, your lawyer also pointed out that you are a first time offender. This means you have not been in trouble with the law all your life. This was the first time for you to commit an offence. Thirdly, your lawyer submitted and I accept that, you expressed remorse. However, I note that you have not paid any compensation or took any steps according to custom to help restore the harm you have done. So I note that your expression of remorse may not be genuine. Fourthly, I note that you are advanced in your age, in that you are 55 years old. All these years you have been a good law abiding citizen. Finally, I note that you acted in the way you acted, because your wife had left you and your children for another man and when you went and tried to reason with her, she argued with you making you angry. 

17.	Against you, I note that, you used a dangerous weapon a bush knife against your wife. You used that dangerous weapon against her by cutting her with it repeatedly and almost caused her death. You have now left her with disabilities to both of her hands. The ready use of such dangerous weapons as bush knifes to cause the death or injuries to other people is on the increase. Hence there is a prevalence of this offence. Finally, I note that after you had caused the injuries and the resultant disabilities, you have not paid any compensation or make good the harm you have inflicted upon your wife.

18.	Carefully weighing both the factors in your mitigation as well as those against you and the sentencing trend or range I have discussed above, I consider a sentence below the prescribed maximum sentence of 7 years is appropriate in the particular circumstances of your case. I consider a sentence of 4 years appropriate and impose that sentence against you. 

19.	I have considered the possibility of compensation and suspension of either the whole or part of the sentence and have decided against that. The reason for this is simple. First, there is no pre-sentence report to provide the basis for me to give consideration to either of these aspects. Secondly, you are an adult person well over the age of 20 where suspension is not necessarily a readily available option except in exceptional circumstances. You have not demonstrated an exceptional case for suspension of either the whole or part of it of your sentence. 

20.	I note too that, sending you to prison will of course affect your wife and your children in particular. That is however, the direct consequence of your own criminal conduct. That is the consequence you choose when you chose a violent way to resolve your problems. You had the opportunity to choose a peaceful way of resolving that problem and thereby avoid adverse consequences against your wife and children but you did not. 

21.	In the end, I am left with no option but to have you sent to jail to serve your sentence of 4 years. Of the 4 years, I order a deduction of the time you have already spent in custody which is 1 year 4 days. That will leave you with a balance of 2 years 11 months 3 weeks and 3 days yet to serve. I order that you serve that time at the Ningerum Correction service. A warrant of commitment will issue forthwith in those terms.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused