N9385

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 82 OF 2021

THE STATE

v

MURRAY OA
(NO 2)

Waigani: Salika CJ
2021: 9th, 10th, 11th & 29th November, 31st December

CRIMINAL LAW – Practice and Procedure – Sentence for assault occasioning bodily harm – Assault on his partner – Domestic setting – Section 340 (1) of Criminal Code Act – What is the appropriate sentence? – Two (2) years imprisonment.

Cases Cited:

Goli Golu v The State (1979) 
State v Andrias [2020] PGNC 212; N4537
Lialu v The State [1990] PNGLR 487, Kapi DCJ
Acting Public Prosecutor v Aumane, Boku, Wapulae and Kone [1980] PGSC 5
State v Mol (2008) N3707

Counsel:

Ms M Tamate, for the State
Mr L Siminji, for the Accused

31 December, 2021

1.	SALIKA CJ: INTRODUCTION: The prisoner Murray Oa, a Lieutenant in the PNG Defence Force was found guilty to one count of assault occasioning bodily harm under Section 340 (1) of the Criminal Code Act (CCA).

Facts 

2.	The facts upon which he was found guilty were:

“On 4th June 2020, the accused, a Lieutenant with the PNG Defence Force attached to Murray Barracks, but resident at Goldie Barracks arrived home intoxicated with alcohol and began questioning the victim over a duet video she had made on social media platform Tiktok.  Before the victim could explain, the accused punched her on her face with folded fists.  The victim, while blocking more punches, lost her balance and fell onto the floor, at which point the accused held out a heated clothing iron and placed it face down on her left thigh and burnt her.  He then placed the hot iron on the victim’s left side cheek and pulled it downwards thereby burning her left cheek and chest area.  Whilst she lay crying in pain on the floor, the accused further placed the hot iron on the victim’s abdomen and burnt her once again.  The accused attempted to prevent the victim from running away from him, head-butted her and hit her twice on her left side forehead with the iron, as she struggled to get back on her feet.  The victim managed to get back up and escape, seeking help from the military police office located at the barracks.

The victim was treated at the barracks military aid post before being referred to Port Moresby General Hospital for medical examination and further treatment.  As per the medical report, the victim sustained multiple second degree and superficial burn wounds to her left thigh, left chin, anterior chest and abdomen, as well as laceration of her left side forehead measuring 6 cm in length and 1 cm deep exposing her skull.”

3.	Those were the same facts he was arraigned but the State did not prove the charge under s. 319 of the CCA but the Court returned an alternative verdict of one count of assault occasioning bodily harm under Section 340 of the Criminal Code Act.

Issue

4.	The only issue before the Court is what punishment to impose on him.

The Law
	
5.	Section 340 (1) of the CCA provides:

“A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanor.”

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

6.	 The maximum sentences are usually reserved for the worst type of cases charged under Section 340 (1) of the CCA.  See Goli Golu v The State (1979).  The bodily harm caused to the victim was found to be unlawful.  The bodily harm caused to the victim was significant.  The victim’s physical injuries were photographed at the material time and I take note of them. Photograph 1 shows the burns sustained on the victims left thigh.  Photographs 2 and 3 show burns on her left chin.  Photographs 4, 5 and 6 show burns on her chest and abdomen.  Photograph 7 shows laceration on her left forehead sustained when the prisoner hit her twice on her forehead with a clothes iron.  The other 5 photographs show the clothes iron that was used to hit her.  The prisoner was ironing his clothes when the incident started and the iron was hot.  He used the hot iron to make her feel the pain.

7.	Is this case the worst case in assault occasioning bodily harm cases?  If I were to assess seriousness of this case from 1 being the least serious to 10 being the most serious, I would place the seriousness of this case with the injuries caused between 6 and 7, meaning that the victim suffered a lot of pain, even though the injuries were superficial.  The Court may impose a sentence of up to three (3) years imprisonment subject to Section 19 of the CCA.

8.	In the State v Andrias (2020) PGNC 212; N4537, Kawi J explained how a Judge exercises his discretion and said the discretion was exercised depending on the factual circumstances of each case under scrutiny, and how the crime was perpetrated and take into account all the mitigating and extenuating factors in favour of the prisoner and aggravating factors against the prisoner.

9.	In Lialu v The State (1990) PNGLR 487, Kapi DCJ (as he then was) said:  

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

10.	I respectfully adopt those principles by the two learned late brothers, Kapi DCJ (as he then was) and Kawi J.

11.	The Supreme Court in Acting Public Prosecutor v Aumane, Boku, Wapulae and Kone (1980) PGSC 5 said: 

“Over the years, judges in this jurisdiction, and other jurisdictions, have developed theories on sentencing. It is these theories which guide a judge in evaluating the punishment that he ought to impose. The trial judge, in his elaborate reasons for sentence, referred to some of these theories. These theories may be conveniently referred to as deterrence, separation, rehabilitation and retribution.
Deterrence is one of the most frequently used purposes in sentencing Under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.
[…]

The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with.

Above all these considerations, what must be borne in mind is the function and the purpose of criminal law. The purpose of criminal law, like the purpose of customary law in the village, is for the protection of society. The society is made up of individual members. In achieving the purpose of criminal law, regard must be given to the protection of the individual. The individual has constitutional rights which must be protected.  However, we should not be so preoccupied with the right of the accused or prisoner that we forget the rights of the innocent members of our villages, tribes, cities and the country who are entitled to protection against criminal behaviour; all these considerations must be carefully balanced.”

12.	Again, with respect, I adopt the noble principles enunciated by the Supreme Court.   I am sitting as a National Court and I am bound by the decisions of the Supreme Court to apply these same principles in this case.

13.	I am in this case more inclined to achieve a more long term deterrent effect and a more long term community protection effect than retribution.  What type of sentence is going to achieve a long term deterrent and a long term community protection effect on the prisoner himself and to a wider community at large?

14.	The maximum penalty is three (3) years imprisonment.  The court could impose the maximum penalty to achieve long term deterrence and long term community protection.  That is lock him away from the community for three (3) years thus protecting the community for three (3) years.  That is open to the Court.  Will that deter him?  I think it will deter him.  Will it deter others?  It will deter other soldiers and those from the other disciplinary forces in my humble opinion; but I cannot, with respect, say the same to ordinary Papua New Guineans.

His allocatus statement

15.	This is part of what the prisoner said on allocutus:

“Good Morning everyone, your Honour.  I stand here in shame and regret of what I have done hence I am standing in front of you as of this morning.  I wish to apologise to the Court, the State, to the friends and family of the victim, my partner Debbie Kaore.  I would also like to apologise to the organization I represent, PNG Defence Force.  Also my family who have been through this ordeal with me for the last 18 months of my life so far since the incident occurred.  I have suffered mentally, emotionally and also my physical health has also been affected by this trauma that has occurred.  I have learnt a big lesson from what has happened, what has eventuated and I have promised myself including my partner and my family not to endure such circumstance again.  Hence, I ask for leniency in probably a suspended sentence for me to support especially my young children who are still in school and who need my guidance as well as my widowed mother who solely depends on me for all her walkabouts and unlike and like a pillar at her house as well.  Hence, I appeal to the court to have leniency on me and I wish if I am given that leniency I swear to God and to this Court never to do such a demeaning unbecoming act which I previously did.  Hence, I say sorry once again.  Thank you.”

PERSONAL PARTICULARS

16.	The prisoner’s personal particulars are:

i)	He is 34 years old.

ii)	He has two brothers and two sisters and he is the fourth born in the family.

iii)	His father passed on this year in March but mum is still alive.

iv)	He is a Lieutenant in the army.

v)	Was married to Nickla Merimba and separated in 2016 from her after 10 years of marriage.

vi)	Has 2 children from Nickla Merimba – a girl 11 years old and a boy, 9 years old.

vii)	Has another girl child from Alice, a medical doctor.  The union between the prisoner and Alice did not last long and they broke up in 2018.

viii)	Then he met Debbie in 2019.  Debbie had 2 sons from her prior unions.  Debbie bore a child from the prisoner in around May 2020 and so in total he has 4 children from 3 different women.

ix)	It was after the birth of their child when this trouble came up.

x)	The prisoner is a graduate from the University of Papua New Guinea with a Bachelors Degree in Medical Imaging in 2010.  He worked briefly with the Port Moresby General Hospital and in August 2010, he enlisted with the Papua New Guinea Defence Force.  After 18 months of training, he passed out as a Second Lieutenant and posted to Moem Barracks.  He was there for two years and posted to Goldie Reiver Training Depot as an instructor.  He was then promoted to the rank of Lieutenant.  In 2020, he was attached to Defence Intelligence Bureau at Murray Barracks Headquarters.  At this time he is sidelined as a result of this case.

MITIGATING FACTORS

17.	The following are mitigating factors:

i)	He is a first time offender meaning he has no prior convictions and no prior criminal record.

ii)	Some form of compensation in goods and cash valued at K8,000 was paid by the prisoner and his relatives to the victim and her family.

AGGRAVATING FACTORS

18.	The following are aggravating factors:

(i)	The assaults occurred at the family home at the Goldie Barracks in the view of their children.

(ii)	The victim was over powered and helpless.

(iii)	She was subjected to emotional distress, fear and trauma.

(iv)	The prisoner is a serving member of the PNG Defence Force which is a disciplinary force.

(v)	Demonstrated conduct of abuse of trust, authority and dependency.

(vi)	The offence is a prevalent one and is domestic violence.

SENTENCING
 
19.	In State v Mol (2008) N3707, David J said to the prisoner who pleaded guilty to a charge of unlawful assault causing grievous bodily harm the following:

“Wife beating is prohibited by law yet husbands continue to assault their wives in our society with total disregard for their humanity for all sorts of reasons and sometimes they end up in death  …  Wife should be respected by their husbands just as husbands expect their wives to respect them.

20.	With respect, I agree with the observation of David J in that case.  I note that the prisoner and the victim were in a de facto relationship, but the duties and responsibilities of a man in that setting are the same as a married couple.

21.	The prisoner is a Defence Force officer.  The Defence Force is a disciplinary force.  The prisoner is expected to have discipline in his veins, blood and head before he takes any actions.  He would have been trained to be disciplined in all aspects of life, and to have more self-control.  The prisoner in this case did not exhibit that when the victim tried to explain an issue the prisoner raised.  Instead of waiting for an explanation from the victim, he assaulted her.  This is a cowardly act of a man towards a woman who is his partner.

22.	What the prisoner and the victim lacked in this relationship was trusting each other.  They seriously need a lot of counselling on marriage life and what it takes to be married and the responsibilities that go with it.  A properly trained marriage counsellor needs to be engaged to counsel them.  Issues of fidelity in a relationship need to be embraced by young couples in this day and age.

23.	Women especially young women must not allow themselves to be treated like store goods or material possession, that when their use by date is up, they get thrown away and discarded.

24.	Similarly, young men should not become narcissists who think the world revolves around them by jumping from one woman to another.  Officers in the PNG Defence Force who behave like that have no place in the Defence Force.  They are a disgrace to the uniform they wear and should be sternly dealt with.
 
25.	 I do not say these things lightly.  Domestic Violence and other forms of Gender Based Violence is deeply entrenched in our communities.  I am not even sure if it is true to say domestic violence and gender based violence is not part of our PNG culture.  I have read a lot of literature that in a union between a man and a woman, there must be trust and a commitment to one another.

26.	The circumstances of this case is such that both Murray Oa and Debbie Kaore come from broken relationships.  Murray was married to a woman for 10 years.  He separated from her and entered into another failed relationship.  Then he entered into a relationship with Debbie which brought about this problem.  Debbie herself is in no better position then Murray Oa.  She too had a first relationship with a man and this relationship with Murray Oa is the second.  Issues of trust and fidelity arise here.  The prisoner is now 34 years old and needs to settle down and have a proper family.  Because of their respective past relationships, issues of trust and fidelity will arise every now and then in the domestic settings.  They both will need help on these.

27.	This was a domestic setting.  The prisoner did this in front of their children.  What kind of role model is he displaying to the children?  I take into account his allocutus statement, and, more so, his regret for what he did.  He will learn from this incident and from now on know how wrong it is to assault his partner.  From this incident, he will and must learn that he needs to properly settle down and be a father figure.  But he must realize that what he said on allocutus are matters he brought on himself and his family.  His suffering was brought about by his own doing and conduct.  He must blame himself.

28.	Considering all the factual circumstances of the case, the mitigating factors and the aggravating factors, I impose a sentence of two (2) years imprisonment in hard labour, to serve his two (2) years at the Bomana Jail in Port Moresby.   He has been in custody for 1 day only.  That is taken off.  Balance to serve is  one (1) year, eleven (11) months, three (3) weeks and six (6) days.

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner