N5585

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 312 OF 2014

THE STATE

-v-

KAMAWALI TUMBERI

Tari: Kassman, J
2014: April 7th, 8th And 11th

CRIMINAL LAW – Sentence – Criminal Code Section 322(1)(a) – Unlawful wounding – plea of guilty – first offence – some premeditation to cause injury – immediate remorse – sentence of one year imprisonment - time in custody awaiting trial deducted - balance of term wholly suspended on conditions of good behavior and community service at Tari Hospital

Legislation cited

Criminal Code Act Sections 19(1)(a), (1)(b), (1)(d), (1)(f), and (6) and 322(1)(a) 

Cases cited

Maima v. Sma [1972] PNGLR 49
State v Lekis (2007) PGNC 214
State v Maria Ako CR No. 834 of 2013 

Counsel

Sheila Luben, for the State 
Cecilia Koek, for the Offender

DECISION ON SENTENCE

1.	KASSMAN J: Introduction: Kamawali Tumberi ("Kamawali") pleaded guilty to the charge of unlawful wounding. This is the decision on sentence.

2.	On presentation of the indictment, Kamawali admitted the brief facts as being true. Those facts are as follows. Kamawali is from Pujaro Village, Tari in the Hela Province. Kamawali is married to a man from Kikita No. 1 village. They live together with their six children at Kikita Village which is her husband's village. On 24th October 2013, between the hours 9am and 10am, Kamawali together with three other women were on their way to the garden. They saw the victim Pendai Robert was also in her own garden. When Kamawali saw the victim Pendai Robert ("the victim"), she approached and confronted her and started assaulting the victim. During the course of the assault, Kamawali used a knife to cut the right hand of the victim. After the victim was cut the accused and the others left the victim and went away. As a result of this assault, the victim sustained an injury or a cut to her right wrist. 

3.	The charge is laid pursuant to section 322(1)(a) of the Criminal Code for unlawful wounding." 

Allocutus

4.	In allocutus, Kamawali spoke in Huli language which was translated to English as:

"I have done wrong and God can have mercy on me. God can forgive the wrongs that I have done for wasting lawyers time and courts time to bring this case up. I ask the victim to forgive the mistake I have done and I am sorry to the family of the victim for the offence that I did. Could the court of have mercy on me for the mistake that I have done? I have done wrong. That's all."

Antecedents

5.	The offender has no prior convictions.

6.	From submissions for Kamawali, the following additional background facts were presented without objection from the State. Kamawali is forty-five years old. She is from Kikita No. 1 of Pujaro Village in the Tari District of the Hela Province. She is a wife and mother of six children ranging from 7 years to 20 years, the eldest is now married. She is a villager with no formal education. She is unemployed. She sustains her family by selling produce from the harvest from her gardens. She is a member of the Evangelical Lutheran Church of Papua New Guinea. 

7.	Counsel also submitted compensation had been paid by the family of Kamawali to the victim following the incident which was accepted by the victim and her family. It was said the compensation payment of One Thousand Seven Hundred Kina (K1,700) to the victim was witnessed by peace and good order committee members who were also present in court along with the victim. When the court enquired on documentary evidence confirming the compensation ceremony and cash payment, it was then revealed that in fact no payment was made by Kamawali and her husband and family to the victim. On observing some tension in court, the court adjourned for a short time for counsel for the State and Kamawali to calm the situation down and extract the truth about this aspect. 

8.	On resumption, both counsel assured the court that the misunderstanding had been resolved. The incident involved Kamawali supported by a number of other women in the attack on the victim. Kamali was charged by police. Two other women were brought before the Village Court and ordered to pay the victim compensation totaling One Thousand Four Hundred Kina (K1,400). One woman paid Eight Hundred Kina (K800) and the other paid Five Hundred Kina (K500). Kamawali was not ordered to pay compensation and neither did Kamawali pay any compensation to the victim. 

Relevant Law

9.	Section 322(1)(a) of the Criminal Code Act provides "A person who unlawfully wounds another person is guilty of a misdemeanor." The prescribed penalty is "Imprisonment for a term not exceeding three years".

10.	The maximum penalty is imprisonment for a term not exceeding three years. "The general principle is that the maximum punishment should be awarded only in the worst cases." Maima v. Sma [1972] PNGLR 49.

11.	The Court has considerable discretion whether to impose the maximum penalty or a lesser sentence and this power is provided under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d), the offender can be discharged and the sentence postponed [subsection] (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].

12.	Submissions on sentence were heard and are summarized as follows:

Submissions by Counsel for Kamawali (written and oral)

13.	Kamawali is 45 years old. She has no prior convictions. She supports her husband with the marketing of vegetables and other food crops for income and is responsible for the care and upkeep of their children. Kamawali pleaded guilty on presentation of the indictment and the brief facts thus saving the victim the trauma of having to relive the ordeal in open court. This plea also avoided time spent on a full trial process so time and expense was saved for both the court and lawyers for the prosecution and accused employed by the State who traveled to Tari on circuit this month. Kamawali did admit to police of her wrongful actions immediately after the incident. It is conceded, a dangerous weapon was used and there was serious violence involved that resulted in injuries to the victim.

14.	Counsel submits a sentence one year imprisonment is appropriate. After deducting time spent in custody, the balance of the sentence should be suspended on conditions that she be of good behavior and perform community service. An important reason for this is Kamawali is a mother to young children. Her village is situated a short distance from the Tari Hospital which is an ideal state and community institution at which Kamawali could perform community service like cleaning of public waiting areas and the grounds. 

Submissions by State Counsel

15.	Counsel for the State argued assaults particularly using dangerous weapons are prevalent in this country. The families of Kamawali and the victim appear to have been engaged in an ongoing dispute and there were five other women who were in the company of Kamawali when this assault took place however there was no evidence that there was premeditation or prior planning in the attack. The victim wants to see justice is done for the attack on her. As a result of the use of the bush knife, the victim sustained a cut to her right wrist. Although no bones were fractured, tendons and muscle were severed and after the wound healed there remains a big scar. 

16.	Counsel submits violence and assaults are not the way to resolve disputes. The punishment must act as a deterrent to such conduct. A term of imprisonment of one year is appropriate along with an order for payment of compensation. Kamawali has served time in custody since her arrest on 7 December 2013 so that period should be deducted from the sentence to be imposed. It is agreed conditions for suspension of the sentence should include a good behavior bond and performance of community service as submitted by counsel for Kamawali. 

Comparable Cases

17.	Counsel for the State did not refer to any comparable sentences. Counsel for Kamawali referred to State v Lekis (2007) PGNC 214 where the offender pleaded guilty to a charge of unlawful wounding his sister when he swung a bush knife which struck his sister on her head. Time in custody awaiting sentence was deducted and the balance of the term suspended on conditions.

18.	In my judgment delivered in CR No. 834 of 2013 State v Maria Ako on 23 October 2013, the offender pleaded guilty to unlawfully wounding her partner in a domestic argument. In a rage of anger, the offender forcefully entered the home of her partner and in the course of a physical confrontation; she stabbed the victim on his left thigh with a small knife. Immediately after realizing her error and the injury sustained by the victim, the offender rushed the victim to the hospital and then took personal care for his recovery. Although she did not cooperate with police, at the trial she pleaded guilty to the charge. She was also a first time offender and a single mother taking full responsibility for her four young children. She was also a serving nurse who had also performed excellent community service in rural areas. She was sentenced to two years imprisonment which was wholly suspended on condition she perform community service for one year at the Mendi General Hospital where she is employed as a registered nurse. She was ordered to perform an extra three hours per week of unpaid service under the direction of the hospital CEO. Further, for a period of one year, the offender was prohibited from leaving the province, prohibited from consuming alcohol and was to report to the Assistant Registrar, National Court Mendi the first Friday of every month, 

Consideration of the arguments

19.	In my observation, I doubted Kamawali's expression of remorse. It seemed just a statement being made to plead for mercy from the court. It was not a genuine admission that her actions were wrongful on her part and that she had acted in an unlawful manner. I got the impression she was keen to get the trial completed regardless of the consequences. 

20.	What is significant in my view is that Kamawali did admit to police of her wrongful actions immediately after the incident. She maintained this honest approach when she pleaded guilty on presentation of the indictment and the brief facts thus saving the victim the trauma of having to relive the ordeal in open court. This saved significant time on a full trial and the resulting expense to the police preparing state witnesses and also court and lawyers for the prosecution and accused employed by the State who traveled to Tari on circuit this month. I also endorse all of the submissions for Kamawali, most of which were also supported by state counsel. I will not repeat them again. 
.
21.	I am of the view a sentence of one year imprisonment is appropriate in the circumstances of this case. A dangerous weapon was used in a violent encounter. There was some premeditation as the evidence shows the victim was ambushed by the large number of women accompanying Kamawali but the victim managed to save himself from more serious injury. If the circumstances were more aggravating, the State could have pressed for the charge of grievous bodily harm which carries are higher maximum penalty of seven years imprisonment 

22.	However, on account of the many mitigating factors discussed above, I also agree with counsel for both the offender and the State that this is an appropriate case for a suspended sentence. 

23.	It is also agreed that the use of dangerous weapons like small and large knives including bush knives, rocks, rods or similar implements that are made of hard wood or steel particularly those with sharp and reinforced edges is still prevalent in violent confrontations in this country. As deterrence to the offender and the community from committing similar offences and also as a means of recognizing the seriousness of this conduct, this court must attach strict conditions to the suspended sentence. 

24.	The penalty imposed is a sentence of one year imprisonment. The time spent in custody awaiting trial, a period of 145 days (7 December 2013 to today 11 April 2014) is deducted and the balance of the term is wholly suspended but on conditions that the offender be of good behavior for one year and the offender must perform community service for a period of six months.

25.	The formal orders of the Court are:

a.	A sentence of one year imprisonment is imposed.

b.	The time spent in custody awaiting trial, a period of 145 days (7 December 2013 to today 11 April 2014) is deducted from the sentence of one year imprisonment.

c.	The balance of the sentence is wholly suspended with conditions that:

i.	Kamawali Tumberi will be of good behaviour for one year from the date of this order; and

ii.	For six months, Kamawali Tumberi will perform community service in:

1.	Working three hours per week
2.	Unpaid 
3.	At the Tari Hospital
4.	Under the direction of the CEO of the Tari Hospital or his nominee

iii.	For the duration of one year:

1.	Kamawali Tumberi will not leave the Hela Province, except with the leave of the National Court

2.	Kamawali Tumberi will not consume alcohol

3.	Kamawali Tumberi will report to the Crimes Officer, National Court, Tari on the first Friday of every month between 9am and 3pm. 

4.	Kamawali Tumberi must have a satisfactory probation report submitted by the Community Based Corrections Officer to the National Court Crimes Officer once every three months

d.	The CEO of the Tari Hospital is directed to provide all necessary assistance to the Community Based Corrections Officer in the conduct and supervision of community service as described above.

e.	If Kamawali Tumberi breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained to serve the rest of her sentence in custody.

Judgment accordingly 
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused