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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO. 307 OF 2007
THE STATE
V
MIRIAM JOHN
Prisoner
Kundiawa: David, J
2009: 9 & 11 December
CRIMINAL LAW – sentence – grievous bodily harm – prisoner and victim are co-wives – victim assaulted when 7 months pregnant – victim delivered a premature macerated dead female baby – guilty plea – jungle justice –sentence of 5 years to be served IHL – part of sentence suspended with conditions – ss.19 and 319 Criminal Code.
Cases cited:
The State v. Smith James Ondari (1990) N867
Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported Judgment dated 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ)
The State v. Drikore Yuana Peter [2000] PNGLR 307
The State v. Kenny Reuben Irowen (2002) N2239
The State v. Namba Mako, CR. No.48 of 2007, Unreported Judgment of David, J delivered on 16 October 2007 at Mt. Hagen
The State v. John Komep, CR. 300 of 2006, Unreported Judgment of David, J delivered on 13 November 2007 at Mendi
The State -v- Vero Gul, CR No 1047 of 2005, Unreported Judgment of Makail, AJ delivered on 07 April 2008
The State v. Ali Kawa Job, CR No. 1189 of 2006, Unreported Judgment of David, J delivered on 15 December 2009,
The State v. John K. Daugl, CR No. 548 of 2006, Unreported Judgment of David, J delivered on 16 December 2009 at Kundiawa
Counsel:
T. Ai and M. Giruakonda, for the State
T. Ohuma, for the Prisoner
SENTENCE
11 December, 2009
1. DAVID, J: INTRODUCTION: On 9 December 2009, an indictment was presented against the Prisoner charging her with 1 count of unlawfully causing grievous bodily harm to one Rosa Mark at Deti Wara, Chuave, Simbu Province on 27 September 2006 contrary to s.319 of the Criminal Code. Upon reading the depositions, I was satisfied that the evidence contained therein supported the charge. I therefore accepted the Prisoner's guilty plea and convicted her of the charge.
BRIEF FACTS
2. The Prisoner pleaded to these brief facts for the purpose of arraignment.
3. On 27 September 2006, the Prisoner was at Deti Wara, Chuave in the Simbu Province when she met the victim, Rosa Mark while she was on her way to the antenatal clinic at the Chuave Health Centre. The victim was 7 months pregnant at the time. The Prisoner approached her and punched her several times. The victim suffered serious internal injuries as a result. She was in agonising pain and was taken to the Chuave Health Centre for treatment. The pain continued and she lost a lot of blood. Subsequently, the victim was referred to the Kundiawa General Hospital where she delivered a dead premature female child.
4. The Prisoner was later arrested, charged and detained.
THE EVIDENCE
5. The depositions contain a number of documents that constitute the evidence that the State relied on to support the charge. They include the following:-
6. I briefly discuss below the evidence contained in those documents.
Affidavit of Rosa Mark
7. She is from Keu village, Chuave District. She resides with her husband, Mark Daiworo at the village. She was 7 months pregnant at the time the crime was committed. On 27 September 2006, she left the village at about 06:00 am to attend the antenatal clinic at the Chuave Health Centre. She was accompanied by 2 other pregnant mothers and a young girl from the village. Whilst walking along the main road at Yom village, she was confronted by the Prisoner. The Prisoner started throwing punches at her directed at her face and abdomen. The assault continued between Yom and Deti Wara which is about ½ a kilometer apart. Along the main road at Deti Wara, she collapsed and fell to the ground. As she was falling to the ground, the Prisoner kicked her about 7 times on her abdomen. She was assisted by one of the pregnant women namely, Angela to get up and she forced herself to walk to the Chuave Health Centre. There, she told the nurse about the assault. That afternoon, she started to bleed and felt like she was going to deliver the baby. Her husband rushed her to the Kundiawa General Hospital where she was admitted to the Labour Ward. She underwent examination and scanning which revealed that the baby had died and arrangements were then made to have the baby removed.
Affidavit of Angela Buzs
8. She is from Keu village, Chuave District. On 27 September 2006, she left her village at about 06:00 am to attend the antenatal clinic at the Chuave Health Centre. She was in the company of the victim who was also attending the antenatal clinic when they met the Prisoner at Yom, a village near Deti Wara village. She witnessed how the Prisoner confronted the victim and began assaulting her by throwing punches at her without the victim fighting back. Despite the victim's efforts to run away for safety towards Deti Wara village, the Prisoner persisted with the assault including kicking the victim several times on the victim's abdomen causing the victim to fall to the ground in the process. She later assisted the victim to get to the antenatal clinic at the Chuave Health Centre.
Affidavit of Simon Drua
9. He is from Keu village, Chuave District. He is a welfare officer attached to the District Services at the Chuave station. He left his house at about 07:30 am to go to work at Chuave when along the way at Deti Wara village, he saw the Prisoner and the victim who is from his village involved in an argument.
Affidavit of Mark Daiworo
10. He is the former husband of the Prisoner. He married the victim around late February or March 2006 soon after the Prisoner left. He has been accosted by the Prisoner along the road on a number of occasions and has taken from him goods purchased for his small trade store. He has also been subjected to verbal abuse by the Prisoner even to the extent of telling him that she intended assaulting the victim whenever she met her.
11. Following the assault on 27 September 2006, he took the victim to the Kundiawa General Hospital arriving at about 10:00 pm and was admitted. The victim delivered a premature dead female baby on 8 October 2006. The baby was buried at the village on 9 October 2006.
Medical Report
12. Dr. Joshua Kaman reports that the victim was into week 31 of her pregnancy when she was admitted to the Kundiawa General Hospital allegedly after being assaulted by her husband's other wife on the flanks and abdomen. His other observations are recorded in the following terms:-
"She was admitted on the 28/09/06 with severe pain on bilateral flanks and lower limb weakness and vaginal bleeding... Examination reveals tender abdomen and uterus with viable fetus... There is no vaginal or cervical lesion, but blood stained cervical os.... She recovered after treatment with analgesics. However per vaginal spottings (Bleed) persist and two days later there was no fetal movement. USS depict Fetal Death in utero labour was induced and she delivered a macerated female baby... She made an uneventful recovery." (sic)
Affidavit of Doctor Joshua Kaman
13. Dr. Joshua Kaman confirms the observations he made in the Medical Report.
Confessional Statement of the Prisoner
14. The Prisoner was married to the victim's husband before. She left the matrimonial home after her husband had assaulted her following an argument. She had been living separately and apart from her husband for some time before the incident on 27 September 2006. She assaulted the victim at a location between Yom and Deti Wara on 27 September 2006. When she met the victim, she wanted to break the victim's mouth because the victim and her mother had previously assaulted her at their village when her mouth was broken. She hit the victim on her mouth using her hand only. Bystanders intervened and stopped her from continuing the assault.
Affidavit of First Constable Albert Watnawi
15. He is a first police constable attached to the Criminal Investigation Division, Chuave Police Station and is the investigating officer in this case. His investigation began soon after receiving a complaint from the victim's husband, Mark Daiworo on 27 October 2006 resulting in the arrest of the Prisoner.
16. He conducted the Record of Interview between himself and the Prisoner with Constable Paul Kalu in attendance as corroborator on 22 November 2006 in the Drug Squad Office at the Kundiawa Police Station. The interview was concluded the next day on 23 November 2006. The interview was conducted in Tok Pisin. He describes how he conducted the interview and further states that the Prisoner freely admitted assaulting the victim, but denied intending to kill the baby. He then formally arrested the Prisoner and charged her for manslaughter. The Prisoner was remanded in custody until admitted to K200.00 cash bail by the Kundiawa District Court.
Affidavit of Constable Paul Kalu
17. He is a police constable attached to the Criminal Investigation Division, Chuave Police Station as an investigator. He attended the interview conducted between First Constable Albert Watnawi and the Prisoner which began on 22 November 2006 in the Drug Squad Office at the Kundiawa Police Station as corroborator and describes how the interview was conducted. The interview was concluded the next day on 23 November 2006. The Prisoner was very cooperative and the answers given by the Prisoner to questions asked by First Constable Albert Watnawi were done on her own free will without any inducement held out to her to obtain her answers. The Prisoner admitted assaulting the victim, but denied intending to kill the baby. First Constable Albert Watnawi then formally arrested her and charged her for manslaughter.
Record of Interview
18. The Prisoner is the first wife of the victim's husband, Mark Daiworo. They have separated, but he sometimes gives her betel nut, smokes and money and therefore still considers him to be her husband. She admits that on 27 September 2006, she met the victim while she was in the company of 3 other women at a location between Yom and Deti Wara villages. When she met the victim, it was an opportunity for her to get even with her for being assaulted by the victim and her mother previously at their village. Her mouth was broken on that occasion therefore she also wanted to break the victim's mouth. She followed the victim along the main road down to Deti Wara where she assaulted her. She hit the victim with her hands on her mouth only. She did not punch the victim's abdomen nor kick her. She knew by the victim's appearance that she was pregnant, but she did not mean to kill her baby.
Pages of Rosa Mark's Clinic Book
19. The pages of the Clinic Book confirm that the victim was an antenatal patient and they contain notes of the antenatal visits to medical facilities that she had been to. It appears that the victim was initially admitted to the Kundiawa General Hospital on 27 September 2006 and discharged sometime later. She was readmitted to the Kundiawa General Hospital on 3 October 2006 and discharged on 11 October 2006.
ANTECEDENTS
20. The Prisoner has no prior convictions.
21. The Prisoner is from Mainamo village, Chuave District, Simbu Province and resides there. She is now aged 30 years. She was baptised into the Lutheran faith. Prior to committing the crime, she was married to Mark Daiworo. She has 2 male children. Her parents are alive. The children are under their care while she is in custody. She has 3 brothers and a sister and she is the second born in the family. She attended the Bawi Primary School where she completed Grade 5.
22. She was on K200.00 cash bail until revoked for absconding bail. She has now been in custody for a total of 1 year and 3 months.
ALLOCATUS
23. The Prisoner is the first wife of Mark Daiworo. Her husband left her and got married to the victim. She then returned to her village and was residing with her family when she committed the crime. Her husband has not left her altogether. He gives her soap and money at times. On one occasion before she committed the crime, the victim and her mother assaulted her.
24. The Prisoner admitted that on 27 September 2006, she was in her village when she came across the victim and assaulted her. She punched her on the mouth causing her to fall to the ground and believes she was taken to the hospital later. She was arrested by the police the next day. She was in custody for about 3 weeks before being admitted to K200.00 cash bail. A bench warrant was issued for her arrest for failing to attend a call-over and since its execution, she has been remanded in custody awaiting her trial. She has been in custody for a total of over 1 year and 2 months now.
25. The Prisoner said that she was a first time offender and was sorry for breaking the law. She also said that she did not mean to kill the unborn child as she only punched the victim on her mouth. She also asked the Court to consider that; her parents were alive; she had 3 brothers and a sister in the family; she had 2 male children one doing Grade 7 and another doing Grade 4; and she was involved in the informal business sector, income from which she applied towards paying school fees and supporting the family. She asked the Court to take those matters into consideration and exercise mercy on her.
26. The Prisoner also asked the Court to consider that on one occasion whilst on her way to attend a call-over, Mark Daiworo and his brothers assaulted her very badly for not paying compensation. She obtained a medical report to show the extent of injuries she suffered from the incident. She reported the incident to the police. The complainant and his companions later said sorry and offered her K100.00 for her sufferings which she accepted to avoid further trouble.
SUBMISSIONS OF THE PRISONER
27. Ms Ohuma highlighted as factors in mitigation; the guilty plea and the time and resources saved for the case not becoming a contested trial; the plea was consistent with the Prisoner's earlier admissions demonstrating her cooperation with police investigations; the Prisoner was a first time offender; and that her expression of remorse was genuine.
28. The loss of the premature baby was a factor operating against the Prisoner counsel said. She submitted however that the circumstances of the crime were such that if no death had resulted, this case would have turned out to be a simple assault.
29. Ms. Ohuma also submitted that the Court take into account the fact that the Prisoner suffered severe injuries when she was assaulted very badly by Mark Daiworo and his brothers. The medical report authored by a Karl Bafi of the Chuave Health Centre dated 07 August 2007 which was tendered by consent confirms that the Prisoner was treated there for those injuries on 02 July 2007 counsel said.
30. Ms. Ohuma further submitted that whilst the maximum penalty was imprisonment for 7 years, the Court had discretion to impose a term of imprisonment within that range and could suspend any part of it. Out of the term imposed, the Court should deduct the pre-trial custody period of 1 year, 2 months and 3 weeks she said.
SUBMISSIONS OF THE STATE
31. Mr. Giruakonda submitted that this was a case where a pregnant mother was assaulted as a result of the Prisoner taking the law into her own hands by way of revenge for an earlier attack on her. That was the reason given by the Prisoner in the Record of Interview for the assault he submitted. This was not a simple assault as was suggested by the defence he submitted. There are proper forums or systems established where people can take their grievances to for determination and people should be discouraged from taking revenge he said. The Prisoner was not the wife of the victim's husband at the time when the crime was committed he said.
32. Counsel further submitted that the Prisoner as a mother of 2 children should have understood what it felt like to be pregnant. The victim was vulnerable because of her pregnancy. She suffered agonising pain from the crime scene to the Chuave Health Centre then she had to be taken to the Kundiawa General Hospital where she eventually delivered a premature, but dead female baby. The death of the baby was directly linked to the assault the victim was subjected to by the Prisoner counsel submitted.
33. As to penalty, counsel submitted that while the maximum prescribed penalty was imprisonment for a term not exceeding 7 years, the Court should impose an appropriate sentence befitting the crime. He said that the Court should be guided by the sentencing trend for serious cases for this offence in this jurisdiction which he said was imprisonment for 2 years and upwards. This was a serious, but peculiar case he said. Counsel suggested that the Prisoner be sentenced to 2 years imprisonment less the time spent in pre-trial custody.
THE LAW
34. Section 319 of the Code creates the offence and prescribes the penalty. The Prisoner could be imprisoned for up to 7 years, subject to the exercise of the Court's considerable discretion under s.19 of the Code. It is trite however that the maximum sentence is always reserved for the worst cases.
COMPARATIVE SENTENCES
35. I have in my quick research during the rigours of the circuit have not come across a case similar to the one before me. In considering an appropriate sentence for the Prisoner, I will therefore have regard to a number of cases dealing with the offence under consideration where guilty pleas were entered. They are; The State v. Kenny Reuben Irowen (2002) N2239; The State v. Namba Mako, CR. No.48 of 2007, Unreported Judgment of David, J delivered on 16 October 2007 at Mt. Hagen; The State v. John Komep, CR. 300 of 2006, Unreported Judgment of David, J delivered on 13 November 2007 at Mendi; The State v. Bill Simai, CR.No. 125 of 2007, Unreported Judgment of David, J delivered on 18 June 2009 at Kundiawa; The State v. Ali Kawa Job, CR No. 1189 of 2006, Unreported Judgment of David, J delivered on 15 December 2009; and The State v. John K. Daugl, CR No. 548 of 2006, Unreported Judgment of David, J delivered on 16 December 2009 at Kundiawa
36. In Kenny Reuben Irowen, the prisoner on a guilty plea was convicted of 2 charges of causing grievous bodily harm to 2 of his 3 wives by severely assaulting them with a bush knife after forcing them to strip naked. One received a deep cut on her left shoulder resulting in 25% permanent loss of function of her left shoulder. The other received several cuts to her legs and her left ring and little fingers.
37. The Court considered the case to be of the worst type for the offence and imposed the maximum prescribed penalty of 7 years imprisonment in hard labour for each of the 2 charges to be served cumulatively. Justice Kandakasi considered that the factors of aggravation including; the severity of the attacks on the victims; the victims were treated in a most inhumane way by their own husband; the prisoner put the victims through shame when he gave them no choice but to run out of the house naked in fear for their lives; the prisoner having a history of beating up his wives; there was no evidence that he paid compensation to the victims and their relatives nor was he prepared to pay any compensation; not showing remorse; not showing any preparedness to change his ways towards the victims; and the prevalence of wife bashing by husbands far outweighed the prisoner's guilty plea and of being a first time offender.
38. In Namba Mako, the prisoner was the father of the victim. They had an argument over a piece of land which developed into a fight. Initially both were armed with bush knives, but the victim was disarmed by somebody. After the victim was disarmed, the prisoner attacked and cut the victim first on his head. The prisoner then swung his bush knife again and when the victim tried to fend it off with his left hand, it was cut off from the wrist, a permanent disability.
39. I sentenced the prisoner to 5 years imprisonment in hard labour less 1 year and 6 weeks for the time spent in pre-trial custody leaving a balance of 3 years and 46 weeks to be served. I suspended the balance of the entire sentence with strict conditions.
40. Among other considerations which the Court took into account in determining sentence were; the prisoner's guilty plea; the victim was the prisoner's son; the victim took from the prisoner pigs and cash worth K4,100.00 while he was in custody which amount was deducted from the sum of K5,000.00 ordered to be paid as compensation; and the prisoner was an elderly person aged 55 years.
41. In John Komep, the prisoner and the victim were paternal cousins whose fathers were brothers. There was a dispute over a piece of family land over which both claimed an interest. The dispute went for mediation and both of them attended the hearing. The decision was against the prisoner. Aggrieved by the decision, the prisoner pulled out a bush knife and attacked the victim causing injury to his left hand in which the little, ring and middle fingers were amputated.
42. I sentenced the prisoner to 5 years imprisonment in hard labour less time spent in pre-trial custody of 3 months and 3 weeks leaving a balance of 4 years, 8 months and 1 week to be served (the balance of the term). I suspended 4 years of the balance of the term with strict conditions.
43. Among other considerations which the Court took into account in determining sentence were; the prisoner's guilty plea; the victim was the prisoner's cousin; the prisoner was an elderly person aged 54 years; there was de-facto provocation arising from the dispute over family land; the gravity and permanency of the injury to the victim's left hand; and the Prisoner attempted to pay compensation.
44. In Bill Simai, the Prisoner who was the brother of the female victim attacked her with a bush knife over the payment of a debt due and owing to the Prisoner. In an attempt to fend the bush knife off, all 5 fingers of the victim's left hand were cut off. The prisoner was sentenced to 5 years imprisonment in hard labour less 2 days he spent in custody leaving 4 years, 11 months and 26 days to be served. Four (4) years of the remaining term was suspended with strict conditions applying.
45. In Ali Kawa Job, the Prisoner and his wife, the victim had an argument over the victim not cooking any kaukau for their pigs. The Prisoner chopped the victim's right leg above the heel and below the calf with a bush knife. The victim's leg was amputated at a hospital as a result. I sentenced the prisoner to 5 years imprisonment in hard labour less 5 months and 3 days for time spent in custody leaving 4 years, 6 months and 25 days to be served. Four (4) years of the remaining term was suspended with strict conditions applying including a compensation order to be settled from bail monies.
46. In John K. Daugl, the prisoner cut his wife's left wrist with a bush knife. The left wrist was completely severed from the rest of the arm except that it was attached to it by the skin. The victim was taken to the hospital where the wrist was amputated. I sentenced the prisoner to 5 years imprisonment in hard labour less time spent in custody. The remaining term was suspended in its entirety with strict conditions including an order for compensation. Amongst factors considered were; the prisoner's previous good record as a teacher and community leader; some compensation had been paid; his ability to satisfy the compensation order; the victim was living with the prisoner after the incident; the immediate incarceration of the prisoner would result in the victim not receiving any redress for her injury; the prisoner was not a risk to the community; and the prisoner's advanced age (over the age of 60 years).
THE PRESENT CASE
47. This is yet another case arising out of a domestic setting where a co-wife has attacked another. The Prisoner is the first wife of Mark Daiworo and the victim is the second wife: see page 1 of the Confessional Statement and answers to questions 17, 18, 19 and 20 of the Record of Interview. The Prisoner assaulted the victim because she was earlier assaulted by the victim and her mother: see page 1, Confessional Statement and answer to question 13 of the Record of Interview.
48. Many of such attacks have ended up either in the victim dying or serious grievous bodily harm is occasioned. A co-wife attacking another is a common occurrence in our country especially in the Highlands region where polygamy is an entrenched institution. The consequences that follow are many, but some of them to name a few only are; revenge attacks by relatives of the victims on the assailants' relatives which often escalate into tribal wars; when tribal wars occur many people die or get injured and properties and gardens get destroyed indiscriminately; then there is the burden of fulfilling customary obligations to pay compensation so that reconciliation and peace is restored in the community; the local economy is strangled; when parents die during the tribal wars, young children are left to fend for themselves; families are robbed of a helping hand to work the land or tend the family when a co-wife dies; displacement of people occurs when people move to neutral areas to avoid the conflict, etc. A dispute over the right of ownership of a common husband initially arising between two individuals thus becomes the basis for other problems that affect the immediate family and the community at large.
49. In The State v. Vero Gul, CR No. 1047 of 2005, Unreported Judgment of Makail, AJ (as he then was) delivered on 07 April 2008, His Honour suggested that there should be a law for the common husband or boyfriend to be held accountable for contributing to these problems. I share those sentiments.
50. I am aware that there have been calls in the past by the Law Reform Commission to outlaw polygamy by legislative enactment for reasons that; it was unfair, unchristian and was against the rights of women in modern Papua New Guinea; traditional functions of polygamy have been displaced by social and economic changes; it could lead to child abuse and child neglect; and conflicts abound between a common husband and his wives or between co-wives in polygamous marriages which gave rise to some of the problems I have alluded to above: see PNG Law Reform Commission, Task Force on Family Law Reform, Press Release, 20 June 1990. I have no idea what progress has been made since.
51. The Courts have also made similar calls for legislative enactment to address this matter as well. One example is The State v. Drikore Yuana Peter [2000] PNGLR 307 where the prisoner was convicted for murder on a guilty plea. There the prisoner, the second wife, was unhappy with the husband taking in another wife into the marriage which she considered already overcrowded and who was also unhappy with the husband for comparing her with the third wife who was said to be educated. She killed the third wife with a kitchen knife by stabbing her twice as she lay asleep in bed. The deceased died due to massive loss of blood. The prisoner was sentenced to 12 years imprisonment IHL. Justice Kiriwom made these observations:-
"This is a domestic related killing in that it arises out of matrimonial disharmony and it is quite prevalent in the highlands. ....... [T]he problem, I think is more deeply rooted than simply penalising and incarcerating the already overly abused and battered wives who have the misfortune to go overboard in their emotional reactions by causing the death of another. The problem is one of building a bridge through legislative enactment linking God's law and man's law so that anyone who violates the law is met with criminal sanction. If Papua New Guinea is to remain a truly Christian country, polygamy must be outlawed for good and attended by severe penalties against those who practice it. Unless this is realised and actioned accordingly, unnecessary deaths resulting from polygamous marriages will continue to appear and reappear as contests between co-wives reach new heights to win greater attention from their one common husband while jealousies between them boil even hotter to the brink until the ultimate explosion."
52. I think it will require a lot of convincing and perhaps sacrifice in the communities where polygamy is entrenched to abandon an accepted custom that has been practiced for decades and is a way of life whenever a legislative enactment outlawing polygamy comes into being. Only time will tell whenever such law is passed and the impact of its enforcement will have in those communities.
53. I personally know a few people living in polygamous situations here who have worked hard to keep their marriages intact though and it seems to work for them despite the spreading of resources financially or otherwise. There is no easy solution to this matter. At the end of the day, I think it is the individuals involved in polygamous marriages or plural relationships to ensure that they work. The common husband or partner should be responsible to instil discipline and control over his wives or partners.
54. I note that there a number of mitigating factors that operate in favour of the Prisoner in the present case. They are; her guilty plea; that she expressed remorse for the crime that she had committed alone; that she has no prior convictions and is therefore treated as a first time offender; that she made qualified admissions in her Confessional Statement and Record of Interview and in so doing has the benefit of cooperating to some extent with the police; there was provocation in the non-legal sense in that the attack on the victim by her co-wife, the Prisoner was due to troubled past relations with the victim.
55. As to the Prisoner asking the Court on allocatus to take into account the well-being and welfare of his family in mitigation, the Supreme Court has warned that this should be approached with caution which I will heed: see Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported Judgment dated 13th June 1997. In that case, the Supreme Court (Kapi, DCJ, Los & Jalina, JJ) said:-
"Welfare of loved ones such as wives and children and parents have been raised by accused persons on numerous occasions both in the National Court and this Court as mitigating factors on sentence. Those are imported factors which a person should bear in mind before he sets out to commit serious crimes such as murder or wilful murder using dangerous weapons against the victim as death of such person may lead to a long period of imprisonment if convicted. Welfare of wives, children and parents are becoming lame excuses and should be treated with caution."
56. I note that the Prisoner was seriously assaulted by Mark Daiworo and his brothers when she was on her way to attend a call-over. The injuries sustained were; black or cyanosis of the outside of the eyes, swelling and redness inside the eyes; laceration of the upper lip and multiple bruises on the face; mobile upper incisor tooth; the entire body was bruised and aching; and she was very traumatised by the whole experience. The Prisoner was appropriately treated at the Chuave Health Centre for those injuries on 02 July 2007. Long-term prognosis was that the scarring on the Prisoner's face and the mobile upper incisor tooth were permanent. This is a factor I will take into account in the Prisoner's favour given jungle justice had been meted out on her: see The State v. Smith James Ondari (1990) N867.
57. I also note that there are several factors operating against the Prisoner in the present case.
58. Firstly, as I have alluded to earlier, this is yet another case arising out of a domestic setting where a co-wife has attacked another. The offence is prevalent especially in the Highlands region.
59. Secondly, this was a serious physical assault given the victim was 7 months pregnant at the time the crime was committed and therefore very vulnerable. The Prisoner knew by the victim's appearance that she was pregnant and the assault on her was unlawful: see answers to questions 35, 36 and 38 of the Record of Interview. The Prisoner's actions in the present case put the lives of the victim and the baby in her womb in danger. The Prisoner's evidence is that she punched the victim on her mouth: see page 1 of the Confessional Statement and answer to question 14 of the Record of Interview. On the contrary, the victim's evidence is that the Prisoner's punches were directed at her face and abdomen and she was kicked on the abdomen a number of times as well: see the Affidavits of the victim and Angela Buzs. The victim could not fight back and was running for cover in fear of her life and that of the baby inside her, but the Prisoner persisted from Yom to Deti Wara: see the Affidavits of the victim and Angela Buzs and page 1 of the Confessional Statement and answers to questions 12, 31 and 32 of the Record of Interview. As to whether the victim was kicked on her abdomen, it is a matter that I will not hold against the Prisoner as it was not specifically put to the Prisoner on arraignment. The onslaught however resulted in her falling to the ground and becoming unconscious: see the Affidavits of the victim and Angela Buzs. The Medical Report and the Affidavit evidence of Dr. Joshua Kaman confirm that it was a serious assault which resulted in labour being induced and the subsequent delivery of a macerated female baby.
60. Thirdly, the assault would have continued had by-standers not intervened. It might have been double trouble had the victim died as well.
61. Fourthly, and as I have stated earlier, the assault resulted in labour being induced and the subsequent delivery of a macerated female baby.
62. Do the circumstances of this case warrant the making of a compensation order within the parameters of the Criminal Law (Compensation) Act 1991? I have considered that this might be an appropriate case for such an order to be made considering the nature and seriousness of the offence and that paying compensation is an accepted customary method of restoring peace and harmony between relatives of disputing parties. This is basically because no Means Assessment Report was filed pursuant to s.4 of the Criminal Law (Compensation) Act which would have been helpful in determining the Prisoner's means and financial circumstances. Section 4 (4) of the Criminal Law (Compensation) Act gives the Court discretion to decide whether or not to make a compensation order in the absence of a Means Assessment Report only where the Chief Probation Officer advises the Court that it is not practicable to furnish one. It is not the case here.
63. The depositions show that the Prisoner is just an ordinary villager. On allocatus, she said that she was involved in the informal business sector and the money she was earning was applied towards paying school fees and supporting her family. I think, it would not be unreasonable therefore to infer that the Prisoner does not have the means to meet any compensation order that the Court might make.
64. In the circumstances, I will not make a compensation order.
SENTENCE
65. I have considered all the factors for and against the Prisoner, the seriousness of the offence, and the need to impose a deterrent sentence because of the prevalence of the offence. I have also considered imposing a sentence of 6 years, but jungle justice having been inflicted upon the Prisoner, I think, a sentence of 5 years imprisonment in hard labour is appropriate.
66. The Prisoner has spent a total of 1 year and 3 months in custody whilst waiting to be tried. Minus that period will leave 3 years and 9 months (the remaining term) for the Prisoner to serve. The remaining term shall be served at the Barawagi CS.
67. However, I will, in the exercise of the Court's discretion under s.19 of the Code, suspend 3 years of the remaining term upon the following conditions:-
1. The Prisoner shall forthwith serve 9 months of the remaining term in custody.
9. The Prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance.
68. In the event that any one of the above conditions is not complied with, the Prisoner will be arrested and taken to Barawagi CS to serve the remaining term which I have suspended.
69. A warrant is to issue forthwith to execute the sentence imposed.
70. I order accordingly.
_________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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