N6373

                                                PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 669 OF 2016

THE STATE

V

HUBERT NARIPAI

Wewak: Geita J 
2016: 15, 20 July 

CRIMINAL LAW – Guilty plea – Grievous Bodily Harm –First time offender –Favourable mitigation factors present outweighing aggravating factors – Special extenuating circumstances present -Section 319 Criminal Code.
CRIMINAL LAW — Sentencing — Grievous bodily harm — Early guilty plea — no prior convictions — Sentence of 3 years wholly suspended - The underlying causes leading to the commission of crimes are best considered in addition to criminal intents.   

Cases Cited:

Goli Golu v The State [1979] PNGLR 653 
The State v Vindin Kauken (2013) N5552)
The State v. Silas Numbaferi & Samuel Numbaferi  CR 813 of 2012: (Delivered 18 April 2016). (Unreported)
The State v Anna Eddie Cr 508 of 2011 July 3 (Unreported)  

Counsel: 

Mr. P Tusais, for the State
Mr. F Fingu, for the Accused

JUDGMENT ON SENTENCE
20 July, 2016 

1.      GEITA J:  The accused pleaded guilty to one count of doing grievous bodily harm to Smith Walia contrary to section 319 of the Criminal Code.
The Law
2.	The offence of grievous bodily harm comes under section 319 of the Criminal Code and attracts a maximum penalty of seven years.
Brief Facts
3.	The accused’s guilty plea was accepted and after having read the depositions handed up in support of the charge against you I was satisfied that the evidence does support your guilty plea. A guilty plea was then formally entered on your behalf. The brief facts are these:  On the 03rd of April 2014 the accused confronted the victim Smith Walia in a trade store in Maprik Town and attacked him with his bush knife. During the struggle the victim attempted to escape but was chased and apprehended by the accused. The accused cut the victim on his knees forcing to him to fall down and continued to attack him. As the accused swung his bush knife again at the victim he raised his right arm in defence causing the knife to completely chop off his wrist. Bystanders stopped Hubert from further attacking Smith who was taken to Maprik hospital for treatment. He has now lost 100 % use of his right wrist. Medical evidence forming part of the depositions confirms the severed wrist and wounds occasioned on the victim’s arm.
Criminal History
4.	No prior convictions have been recorded against your name and I accept that position as presented to me by the Public Prosecutor.
Allocutus
5.	When asked if he had anything to say about the punishment that should be considered on him the prisoner said this was his first time to appear before a National Court and asked for leniency. He said he did not mean to cut his nephew’s wrist off completely. Their two families were now split apart as a result of this incident. He expressed deep remorse to his nephew and his family and to the court.
Mitigation Circumstances
6.	1.	No prior convictions, first time offender
2.	Demonstrated remorse and reconciliation but was rejected by the victim.
	3.	No intention to harm the victim
4.	Elements of provocation present – victim’s adulterous relationship with the prisoner’s wife.
5.	Early guilty plea

Aggravating Circumstances
	
7.	1. Prevalence of the offence

Extenuating Circumstances

8.	Victim’s on going adulterous relationship with the prisoner’s wife resulting in pregnancy and birth of still born twins.  Victim invited to stay with the prisoner’s family and educated at Kapmora ACE School Maprik, a case of serious breach of trust.   

Pre- Sentence Report 

9.	No pre-sentence report was requested for however in its place six sets of affidavits were presented representing the community’s views and those from the prisoner and his close relatives including his wife. The community in Maprik spoke very highly of his community involvement and belief in the Baptist Faith and spoke very highly of him as a very good person. The prisoner is 40 years old and married with four children. Two attending school and two at home with the mother. Two other children born out of the wife’s adulterous relations to the victim died and were buried near the house during the prisoners’ absence from the province on work commitment. 

Submissions on Sentence - Defence

10.	In his prepared submissions Defence Lawyer Mr. Francis Fingu submitted that the matter before Court was not the worst type deserving of the maximum sentence under the law. (Goli Golu v The State) supra. Mr Fingu submitted that the special extenuating circumstances of provocation were justifications enough for a lesser sentence including the consideration of punishment options available to court under Section 19 Criminal Code. Furthermore the prisoner’s early guilty plea, no prior conviction, favourable mitigating circumstances were factors favourable overriding the aggravating factors present. He submitted that Court consider a starting point of 3 ½ years. He however conceded that the crime was prevalent and was an aggravating factor against the prisoner. 

11.	Four cases were referred to me in support of his submissions for a lesser sentence. I have instead settled on two which I consider relevant in this factual situation. They are fairly recent case I presided upon in Maprik and Wewak in 2013 and 2016 respectively. In the first case the prisoner pleaded guilty to the charge of grievous bodily harm: A bush knife was used to cut the victim’s wrist in retaliation of constant abuse, prevalence and first time offender. The underlying cause leading up to the crime was also considered. A sentence of 4 years was imposed and wholly suspended. A K2, 500 compensation was ordered to be paid to the victim: (The State v Vindin Kauken (2013) N5552); The second is in the most recent case I completed here in Wewak in February 2016. (The State v. Silas Numbaferi & Samuel Numbaferi  CR 813 of 2012: Delivered 18 April 2016. The prisoner entered a guilty plea, first time offender, bush knife used as a weapon, victims arm chopped off, prevalence. I sentenced the prisoner to 3 ½ years and wholly suspended the sentence with conditions.   Compensation of K2, 500 to be paid within 4 weeks. 

Submissions on Sentence - State

12.	The State Prosecutor Mr. Paul Tusais took no issue with Defence submissions. He instead requested for a Victim Impact Statement before a sentence is considered by Court to which that application was granted.  I have read through the Victim Impact Statement and the Means Assessment Report. On his part the prisoner has the means to pay some form of compensation to the victim. On his part the victim detests any form of compensation under the Law on Criminal Law Compensation Act as grossly inadequate equating his loss and sufferings. He estimates his loss and suffering amounting 1.7 million calculated at the number of years yet to live and salary of K1800.00 per fortnight. In his haste to come up with that figure he has downplayed or given a falsehood in that he was unemployed at the time of the incident.  
13.	The question of whether the prisoner should be given the maximum sentence is easily disposed off: with ample favourable mitigating factors together with his pre sentence report and the facts surrounding the crime. In short this is the not worst type of case. (Goli Golu v The State [1979] PNGLR 653).
14.	In deciding the appropriateness of sentence to be imposed to the factual situation before me I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of reading the affidavits presented to me. In comparison to the two cases referred to me as opposed to the facts before me, I am of the view that the degree of seriousness in this case is very minimal. It follows that this case should attract a lesser sentence, equal to or if not below those previously ordered. 
15.	My task as Trial Judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. Section 19 of the Criminal Code also gives Courts wide discretion in considering sentencing offenders.  The peculiar circumstances in this case in my view are listed hereunder:
1.	The victim was brought up and educated by the prisoner and raised within his household;
2.	The victim and prisoner are very closely related, ( Uncle and Nephew);
3.	The suspected sexual relations which is the cause of this crime began in 2007 until 2014, a period of seven years;
4.	Several attempts were made by the prisoner including the victim’s close family members to talk the victim out of this adulterous affair with the prisoner’s wife,
5.	Despite the prisoner’s wife’s adulterous affair with the victim, the prisoner has remained faithful to his wife due to his faith and belief,
6.	When physically confronted by the prisoner on 3 April 2014 to stop the affair the victim retorted: What are you going to do about it? (“Bai you wokim wanem”.) 
16.	The peculiar circumstances listed above are damming on the victim’s credibility and not favourable to him. A male adult in a Papua New Guinea setting will not take lightly to the backdrop of events. To his credit the prisoner has remained true to his faith and avoided divorcing his unfaithful wife. It’s no surprise that when the opportunity presented itself with the victim in sight on that fatal day he did what he did as any man would do, not all men though, under the circumstances. 
17.	I find a lot of comfort in my brother Kirriwom J’s wisdom expressed in the case of The State v Anna Eddie Cr 508 of 2011 July 3 (Unreported)  in considering what the appropriate sentence should be and I quote:
“Often Courts jump quickly to the conclusion that an offender deserves punishment by just looking at the nature of the criminal act without appreciating the underlying causes that led to the commission of the offence complained off. And particularly so in domestic situations where one spouse is forced by unforeseen circumstances in the marriage that marginalized the offending spouse for years or decades of suffering when the other party chose not to honour their matrimonial vows.”
18.    His Honours sentiments rings true for the prisoner in this case and I will adopt and apply those sentiments in this case. The prisoner was forced to undergo 7 years of marginalized marital relationship due to his wife’s adulterous relationship with the victim. Borrowing the words of Defence Counsel, this was the case of the victim biting the hand that feed him. I am of the view that the victim’s predicament, although long suffering and inhibiting was his own doing, not deserving of any compensation under the Law on Criminal Compensation Act. In any event that piece of legislation is designed to immediately restore peace and normalcy in tense conflict situations. (bel kol moni). On that basis alone, will a consideration for a token amount of compensation be considered? 
19.	In the exercise of my discretion under section 19 of the Criminal Code I sentence you to 3 years which is wholly suspended. I also order a nominal compensation of K2, 500 to be paid to the victim within three weeks from today. Your court bail of K500 will be returned to you.
 Sentence accordingly,
________________________________________________________
Public Prosecutor:   Lawyer for the State 
Public Solicitor:   Lawyer for the Accused