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State v Amo [2021] PGNC 351; N9173 (30 July 2021)

N9173

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 944 OF 2021

BETWEEN:
THE STATE

AND:
DAVID AMO

Vanimo: Rei, AJ
2021: 20^th & 30^th July

CRIMINAL LAW – PRACTICE & PROCEDURE – GBH S.319 OF CCA – Plea – left hand thumb cut.

Held:

Plea of guilty
First time offender
Permanent injury
Part suspended sentence

Cases Cited:
The State -v- Timi [2012] N4610
The State -v- Tokenaki [2015] N5960
The State -v- Jacklyn Mano CR 972 of 2020

Legislations Cited:

Sections 19 & 319 of the Criminal Code Act

Counsel:

Ms. T. Aihi, for the State
Mr. P. Moses, for the Prisoner

30^th July, 2021

1. The brief facts of this case are that the prisoner is married to the complainant. They are both husband and wife who have three (3) children all males aged 14, 13 and 4 years of age.

2. At about 5:30 pm on the 10^th of November 2020, the prisoner armed with a bush knife went into the family house and swung it at her head. In the process of protecting herself by lifting her arms to shield her head, the prisoner swung the bush knife and cut off the left thumb of the complainant who sustained a laceration measuring 7 cm by 2 cm.

3. The complainant has since suffered permanent loss of the left thumb after receiving treatment from the Vanimo General Hospital on that day.

GRIEVOUS BODILY HARM

4. Resulting from that incident, the prisoner was arrested on the 18^th of November 2020, a record of interview taken in which he admitted the facts and a charge was laid under Section 319 of the Criminal Code Act (“the CCA”).

PLEA

5. The State presented an Indictment in Court on the 20^th day of July 2021 during which the contents of the Indictment and the brief facts were read to the prisoner and requested to enter a plea.

6. The prisoner entered a guilty plea whereupon Counsel submitted that the plea was consistent with his instructions.

7. Upon my perusal of the relevant committal file, I confirmed the guilty plea.

8. Counsel for the accused requested for a pre-sentence report (“PSR”) which has since been filed.

ANTECEDENTS

9. The prisoner is aged 41, a resident of Wasupi Settlement Ward 7 Vanimo LLG, married to the complainant who have produced three (3) male children aged 14, 11 and 3 years. He is semi-literate.

10. He has no prior convictions.

11. Although the PSR records that he is a good resident of the community of Wasupi Settlement, he shows distrust to his wife especially because of her continuous habitual indulgence with alcohol which resulted in the incident that is now before the Court.

ALLOCUTUS

12. The prisoner expressed genuine remorse to his wife and her family for his actions and stated further that because of the young children of the family, the Court be lenient in sentence and that a suspended sentence be imposed and that he is prepared to pay compensation to his wife of K300 within a given time frame.

MITIGATING FACTORS

13. The mitigating factors are that the prisoner:

(i) is a first time offender;
(ii) pleaded guilty to the charge thereby saving time and costs;
(iii) expressed genuine remorse to the victim, his family and the Court;
(iv) is prepared to pay compensation;
(v) undertakes not to do the same thing again to his wife;
(vi) acted alone; and
(vii) did what he did in a domestic settling

AGGRAVATING FACTORS

14. The aggravating factors are that:

(i) permanent loss of the left thumb
(ii) there was the use of a dangerous weapon – a sharpened

bush knife

(iii) prevalence of the offence

APPROPRIATE SENTENCE

15. The whole affair occurred in a “domestic settling” while the wife was sitting at the verandah of the family home and the husband prisoner got a bush knife, chased her into the lounge and hit her with the bush knife with the intention to murder her.

16. I say this because the facts admitted by the prisoner are that he aimed at the head of the victim but the victim protected her head with her left arm and instead of cutting her on the head which could have resulted in the loss of her life living the three (3) children without a mother, left thumb was severed.

17. Although the evidence before the Court does not say the children were present when those events unfolded, I am completely sure that they eventually came to know of them on being advised by the mother or her relatives or friends resident in Wusipi Settlement.

18. The unlawful actions of the prisoner did not only cause physical injuries to the victim but also drew a very sad picture to the children in the manner and behaviour of their father towards the alleged drunken attitude of the victim.

19. There are better ways through which such issues can be resolved than in a family setting but not violence as is in this case.

20. It is common knowledge in this country that husbands do not respect their wives and are regarded second-class citizens so that the wives do what their husbands say failing which violence against her resulting in injury or even death.

21. Is the society in Papua New Guinea to be known as a society that disrespects and disregards the rights of woman and girls thereby stigmatizing them as slaves for men?

22. This attitude and behaviour must be avoided at all costs as women and girls have the same constitutional and human rights as men as enshrined in the Constitution of Papua New Guinea.

23. The charge as laid calls for the maximum sentence of 7 years. Section 319 of the CCA provides as follows:

“A person who unlawfully does grievous bodily harm to another
person is guilty of a crime”.
“Penalty: Imprisonment for a term not exceeding seven years”.

24. Although S.319 CCA provides for a term of imprisonment of up to seven years, the Court has a wide discretion under S.19 of the CCA to impose a sentence less than that time including non-custodial sentence with strict conditions to apply.

25. Most cases decided involving this offence have had the prisoners given a non- custodial sentences.

26. In The State -v- Timi [2012] N4610 where a prisoner pleaded guilty to S.319 of the CCA in which the facts were that the prisoner came into a confrontation with the victim and swung a bush knife cutting the knee, a wholly suspended sentence of 2 years was imposed.

27. In The State -v- Tokenaki [2015] N5960, the prisoner pleaded guilty to S.319 where the prisoner in the company of others assaulted the victim causing lacerations which were not life threatening. Time spent in remand was deducted, the balance was wholly suspended.

28. In The State -v- Dirona [2019] N7985, the prisoner pleaded guilty to S.319 the prisoner attacked the victim with a bush knife, a sentence of 3 years less time spent in remand was deducted and the balance was wholly suspended.

29. In The State -v- Kariat [2018] N6904, the prisoner pleaded guilty to S.319 in which he cut his sister on her left shoulder, a wholly suspended sentence of 3 years was imposed.

30. In The State -v- Darius Taulo [2000] N2034 which involves consistent wife beating, a wholly suspended sentence of 3 years was imposed.

31. In another wife beating case on suspicion of adultery of The State -v- Elvis Kos (2013) N5365, the prisoner used an axe and cut off the 4^th, 5^th and middle finger, a sentence of 4 years imprisonment was imposed less time spent in remand and the balance of the sentence was suspended with conditions.

32. I consider that this is not the worse case of grievous bodily harm compared to the cases of State -v- Elvis Kos (supra) State -v- Darius Taulo (supra) which cases involve consistent beating and abuse of matrimonial partners as this case does not involve those attributes.

33. The prisoner husband was more worried about the up keep of the children of the wedlock and that the habitual drunkenness of the victim became a grave concern to him.

34. But as I said earlier, there are better ways to deal with this problem than becoming violent causing grievous bodily harm in a family-setting. It is growing exponentially in this country which should be strictly controlled by the Courts.

35. In the exercise of my discretion provided for under Section 19 of the CCA, a sentence of 3 years is imposed less the time spent in remand and the balance of the sentence is to be suspended on the same conditions imposed in the recently decided case of State -v- Jacklyn Mano CR 972 of 2020.

36. The conditions of suspended sentence are:

(a) The prisoner is sentenced to 3 years imprisonment.
(b) The prisoner shall enter into a probation for 2 years and 2 months.
(c) The prisoner shall within 48 hours report to the Probation Officer.
(d) The prisoner shall reside at Wasipi settlement in Vanimo at all times during the course of his probation period.
(e) The prisoner shall not leave Wasipi settlement in Vanimo without the Leave of the Court during the course of his probation period.
(f) The prisoner shall keep the peace and be of good behaviour at all times
(g) The prisoner shall not take liquor or any form of intoxicating substance or drug during the period of his probation.
(h) The prisoner shall attend Church every Sabbath for service and Worship whilst on probation.
(i) The prisoner shall within 5 months as of the date of this Order pay to the complainant the sum of K3,000.00.
(j) The payment shall be witnessed by the Probation Officer, the Police Informant, or the OIC of the Vanimo National Court.
(k) The Probation Officer shall file a report on the responses and progress of the probationer every six months at any other time interval as the National Court may Order upon application.
(l) The matter shall return to this Court after 5 months for the prisoner to inform the Court as to the payment of K3,000.00 compensation.
(m) In the event the prisoner fails to comply with any of the conditions, he shall be brought to Court to be sentenced to serve the balance of the term.

________________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for The Prisoner