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State v Genwai [2017] PGNC 163; N6831 (23 June 2017)

N6831

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1633 of 2016

THE STATE

V

JACK GENWAI

Popondetta: Koeget, AJ
2017: 20^th & 23^rd June

CRIMINAL LAW- Indictable offence – guilty plea – maximum sentence under section 319 of the Criminal Code Act – Exercise of the court’s discretionary powers under section 19 of the Criminal Code Act

FACTS:

The accused is married to the victim and both have four children and one of them is handicapped. They lived at Igora Road, Block No. 1470 in the Oro Province.

On 1^st of April, 2016, the victim was planting aibika stems in the garden at the rear of their family house. The accused arrived and accused her of having extra marital affairs with another man. She denied the allegations and argument eventuated shortly thereafter.

The accused had in his possession a brand new bush knife that he swung and struck the victim on both arms and as a result she sustained severe injuries to her arms. The bone of the victim’s left arm was broken and required medical attention at Popondetta General Hospital.

Cases cited:
No Cases cited

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused.

23^rd June, 2017

1. KOEGET AJ: INTRODUCTION : The accused is charged that on 1^st of April, 2016 at Igora Road 11, in the Oro Province, caused Grievously Bodily Harm to Prisca Joel by cutting her arms with a bush knife. The charge is brought pursuant to section 319 of the Criminal Code Act.

ARRAIGNMENT:

2. The accused pleaded guilty to the charge and was convicted accordingly.

ISSUE:

3. The issue for the Court to determine is what is the appropriate sentence the Court should impose upon him.

LAW:

4. The law on Grievous bodily harm is as follows:

“Section 319. Grievous Bodily Harm.

“A person who unlawfully does grievously harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.”

PERSONAL PARTICULARS

5. The prisoner is now 51 years old and resides at SBS Compound in Popondetta. The victim is his wife and she resides with him in the same house with their children after commission of the offence. He is a first time offender and is remorseful. He paid compensation to the victim and family in cash and kind and it was accepted by them.

AGGRAVATING FACTORS

6. The attack was on an unarmed person with a weapon. The victim sustained permanent disabilities and is disabled now assisted daily by the prisoner.

7. This type of offence is very prevalent in the country and many people, organisations advocate: “No violence against women”. But women should not feel that they are free to do what they want outside of their marriages because the law is there to protect them. They must respect their marriages to their respective husbands and refrain from engaging in extra martial affairs with other men as in this case.

MITIGATING FACTORS

8. The prisoner is a first time offender and is still supporting the victim daily. He is remorseful and admits he will care for the victim for the rest of her life. He too will care for the handicap child of their marriage. The wife had been unfaithful to him when she deserted him and four young children while she was residing with a man in Lae. She then left Lae and flew to Port Moresby and was living with another man.

9. She returned to Popondetta after several years and resumed cohabitation with the prisoner in the accommodation provided by the prisoner.

10. The prisoner engaged church elders to counsel the victim but she continued to involve in adulterous relationship with a man residing in the block next to theirs at Igora, in the Oro Province. The prisoner was provoked by the victims conduct so he committed the offence.

11. He has been held in custody for 2 weeks before been released on cash bail. He is still employed at the Papindo Bakery in Popondetta as a baker.

SENTENCE

12. The prisoner forgave the victim for her adulterous relationship with other men prior to 1^st of April 2016. He repeatedly told the victim to refrain from engaging in extra marital relationship with other men but she did not adhere to the advice so the prisoner was provoked and attacked the victim with a bush knife.

13. In my opinion, imposition of a maximum sentence as prescribed by section 319 of the Criminal Code Act is inappropriate in view of the mitigating factors submitted by the defence counsel.

14. This is a sad case where the prisoner suffered mental stress whilst the victim enjoyed the fun outside of the customary marriage. The prisoner continued to work and earn money for the family and he cared for the children alone when the victim deserted him.

15. In the exercise of the Court’s sentencing discretionary powers under section 19 of the Criminal Code Act, I impose a lenient sentence upon the prisoner.

16. The prisoner is sentenced to be imprisoned for period of one year in hard labour.

17. The pre-trial custodial period is deducted and the balance of 11 months and 2 weeks is wholly suspended upon the prisoner entering into recognisance and promise to keep Peace and be on Good Behaviour Bond for 11 months and 2 weeks.

ORDERS:

(1) The prisoner’s bail money of K1,000.00 shall be refunded to him.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused