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State v Maneke [2020] PGNC 247; N8458 (17 August 2020)

N8458

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 642 of 2020, 643 of 2020, 644 of 2020, 645 of 2020

THE STATE
V

LORAINE AVU MANEKE, ELIZABETH ESEMO, TINA TOMMY, MAPOL ROY

Kimbe: Batari, J
2020:11^th, 17^th August

CRIMINAL LAW – Sentence –common assault – Accused persons ganged up and attacked suspected adulterous victim – Seriousness of–careful consideration of - prevalence of –early Plea - mitigation –compensation – mandatory consideration of –Sentence of 6 months with suspension orders appropriate.

Cases Cited

The State v Chan Alois and Augustine Tutut (2008) N3668

Counsel:

A. Bray, for the State
D. Kari, for the accused

SENTENCE

17^th August, 2020

1. BATARI J: On Friday 14 August, the four have appeared before this Court and pleaded guilty to one count of common assault charged under s.335 of the Criminal Code. You are liable to be imprisoned for a term not exceeding 1 year. This is your punishment.
   
2. The brief facts forming the basis for your sentence are these. Loraine Avu Maneke, your husband Eremas Maneke did not come home on the night of 28^th November 2019. The next morning of 29^th November, you learned your husband was with one, Dianne Josiah. So, you enlisted your three friends, Elizabeth Esemo, Tina Tommy & Mapol Roy with others to help you look for Eremas and Dianne.
   
3. Eremas had in fact been with Dianne the whole night. The next morning, they drove to Mamota along the Kimbe-Bialla Highway. At Bilomi, they turned into a feeder road and parked under the oil palm trees. You, Loraine and your friends followed after them and upon locating their vehicle, you drove in, blocking off their access.
   
4. Loraine then smashed the offsider window with a piece of iron and together with Elizabeth Esemo, pulled Dianne out of the vehicle. The four of you proceeded to assault her by punching her and ripping off her clothes with your hands. The victim received injuries in the form of bruises, cuts and swelling to various parts of her body.
   
5. The imprisonment term prescribed by law is not mandatory. Section 19 of the Criminal Code gives the court discretion to impose a lesser term. I bear in mind, the term imposed must attempt to strike a balance between the seriousness of the offence and the interest of the community to see that those with anti-social behaviour repay the society for their wrongs on the one hand, and on the other hand, the personal interests of the offender.
   
6. So, in your case, I must carefully take into account, the seriousness of the offence, the way in which the assault was actually carried out, the circumstances leading up to the assault and your conduct following the offence, the seriousness of your culpability and the community attitude towards your conduct and your personal circumstances.
   
7. Loraine Avu Maneke, originally of Dagenava village, Lufa, Eastern Highlands Province, you are a 31 year-old accountant with Kaulong Estate and married to Eremas Maneke with two children. Your second child is 11 months old and still breast feeding. Elizabeth Esemo, self-employed of Tasitel village, New Ireland Province, you are 41 years, married with three children. Tina Tommy you are 34 years of Muleagani village, Talasea, West New Britain Province, shop assistant, married with a 16 months old breastfeeding child. Napol Roy, you are 25 years, unemployed from Penatabotong village, Bali (Unea) Island, WNB Province, and married with two children.
   
8. You have all pleaded guilty and this is your first offence. What weighs heavily in your favour is your admissions of guilt to the police and your early plea of guilty.
   
9. The fact that one pleads guilty is a factor that may, in appropriate cases substantially mitigate a criminal conduct. It may warrant a substantial discount on sentence as an incentive in itself to plead guilty. In, The State v Chan Alois and Augustine Tutut (2008) N3668 the court suggested, the value of a plea of guilty should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. I agree and adopt the remarks by his Honour Justice Lay that;
   

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

10. In your case, your early plea of guilty is a bonus, supported by your prior good conduct, your expression of remorse and offer to pay compensation are significant factors supported to consider in your favour. There is an added element of provocation in a non-legal sense that mitigated your conduct. Mr Kari described that you caught Eremas and Dianne red-handed. They were however, just sitting in the vehicle.
    
11. You could have just left them alone and taken the matter to court. Dianne was unarmed, she was not a threat to you or anyone in any manner or form. The aggression you showed towards her was excessive and unwarranted. Your victim was defenceless and completely at your mercy. It seems, you not only attacked her to cause her pain, but it is also clear, you intended to shame her in public when you ripped her clothes off.
    
12. When you set upon Dianne, she became the scapegoat for a wrongdoing that takes two to commit. You attacked her in the presence of her male companion who no doubt was the main instigator in the whole affair. It is most unfair that Dianne would suffer the pain and humiliations you put her through while her partner stands by offering no resistance to your actions.
    
13. The four of you should be ashamed of yourselves for your cowardly attack on the defenceless victim. You would not be in court today had you exercised common sense and restraint. Be it as it may, you will pay for your needless violent and anti-social behaviour.
    
14. This type of offence is widespread throughout the country. It is related to family violence, a common occurrence in this country. Whenever a partner in a marriage cheats on the other, this invariably leads to violence and dire consequences. A woman who suspects her husband of cheating on her would usually take it out on her husband’s partner and sometimes weapons are used. In the ensuing result, someone is either seriously hurt or unfortunately killed.
    
15. Despite the punishment being imposed by the courts for this type of offence over the years, violence continues unabated in settling marital violence. People must surely know with the government and Christian influences, that attacking and causing fellow human beings bodily harm is against the law. People need to use the formal systems to resolve their grievances. Your anger and appalling act have not only breached the law, but it also caused the victim unnecessary pain and suffering.
    
16. As part of the punishment it is open to the Court under the Criminal Law (Compensation) Act 1991 to order compensation. Section 2 makes it mandatory for the Court when considering the punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered and taken into account in making compensation orders if the order for compensation will advance the interest of justice.
    
17. It is trite that the interest of justice may be served if the offender can be usefully punished in some other way other than imprisonment. An order for payment of compensation in addition to other punishment is one of those options. Under s. 5 (3)(b) of the Act, the limit of compensation the Court can impose is K5,000.00. Any excess claim over and above that amount may be a subject of a separate civil suit action.
    
18. I am satisfied that an order for compensation will meet the justice of this case. It will also encourage reconciliation and restore relationships.
    
19. Both lawyers have submitted the appropriate sentence should be six to eight years imprisonment and wholly suspended on conditions.
    
20. I propose to impose a sentence that is both useful to the community and to you. The sentence will serve the community interest because you will be given a jail term. It will also benefit you because I propose to suspend the whole of that sentence and place you on good behaviour bond.
    
21. You are sentenced as follows:
    
    1. 6months imprisonment IHL.
    2. The whole term is suspended and you will each be released from further custody and placed on a good behaviour bond if you –
       1. Promise to be of good behaviour to keep the peace and be of good behaviour for six months; and
       2. Enter into your own recognizance with surety in the sum of K500.00 each; and.
       100. Pay the victim K1,000.00 in compensation.
    3. The compensation payment is ordered against each one of you as follows; Loraine Avu Maneke, K400.00; Elizabeth Esemo, K200.00; Tina Tommy, K200.00; Mapol Roy, K200.00 to be paid to the victim with 21 days of today’s date or by 7^th September 2020.
    4. Shall appear before the National Court on the 7 September 2020 and show receipts or evidence of compensation payment and as and when required for assessment of your progress on good behaviour bond.
    5. In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not pay the surety amount of K500.00 each and be incarcerated to serve the term of imprisonment.
       

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