N9743

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 648, 647, & 650 OF 2021

THE STATE

V

ANGELA MICHAEL, WALLACE NOEL & BEVERLYN BEN NOEL

Goroka:  Miviri J
2022:  02nd May, 28th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful Wounding Section 322 CCA – Plea – Bleeding Head wound – Stab Wound Right Bicep – PSR MAR favourable to prisoners – victim prepared to accept compensation in settlement – no residual injuries – suspended sentence with conditions for compensation.

Facts

The three accused in company assaulted and wounded the victim because she was having an extra marital affair with the husband of one of them.

Held

Plea of guilty
First offenders
Extra marital Affair
No residual injuries
Suspended sentence conditions for compensation.

Cases Cited:

State v Esther Maramundi [2021] N9307
State v Sekin [2006] PGNC 74; N4479 
State v Tupi [2012] PGNC 338; N5192 
Tardrew, Public Prosecutor [1986] PNGLR 91 
State v Kara [2012] PGNC 19; N4663

Counsel:

J. Noma, for the State
V. Augusave, for the Defendant

SENTENCE

28th June, 2022

1.	MIVIRI J:  This is the sentence of three women who jointly assaulted and wounded the victim over allegation of an extra marital affair of the victim with the husband of one of the women.

2.	On the 25th July 2020 in the early hours of the morning the three Accused armed with a Kitchen Knife, and empty 330ml beer bottle and stones went to Seigu looking for Meddellie Robert. Wallace Noel suspected her of having a romantic relationship with her boyfriend and went there to harm her. At Seigu they found her at her house. Upon seeing her they called her out of the house. As she came out, they assaulted her. Wallace Noel swung her arm but victim blocked it with her hand. Beverlyn Noel came from the back and hit the victim on the head with a stone on the right side of the head wounding her there. At the same time Wallace took out the empty 330ml beer bottle and hit the right side of the head of the victim smashing the bottle on her head, wounding her there. She was bleeding from there when Angela removed the kitchen knife that she had concealed and stabbed the victim on the right hand on her biceps causing a deep wound about 3-4 cm. On seeing that bystanders intervened stopping the assaults and the accused retreated and presented themselves to the Goroka Police Station. There was no lawful excuse for the assault upon the victim. 

3.	All were charged under section 322 (1) (a) of the Criminal Code Act which read: WOUNDING AND SIMILAR ACTS. 

(1)	A person who–

(a)	unlawfully wounds another person; or

(b)	unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

4.	Each entered a guilty plea to the charge which was consistent with their individual admissions made to Police in their respective records of interview. Wallace Noel was from Monikul, Sinesine Yogomugl District Simbu Province, aged 32 years old having been born on the 21st February 1990. She was married and it was her husband who was allegedly having an affair with the victim that prompted the offence. She had two children, one had since died, and she was pregnant at the time of trial. She was resident with her parents at Seigu and the Airport Club since birth. And was employed as a Stock controller and sometimes did banking. She explained in the record of interview that she had told the victim to stop seeing her husband, but she continued and was seen by a relative who told her. She tried to speak with her but failed when she went to the house. Therefore, on this occasion was accompanied by Beverlyn her elder sister, and Cousin Angela Michael. And the offence was committed because of that fact. She was a first time offender educated to a diploma and advance in Business Accounting at the International Training Institute in Port Moresby and was employed as of the 25th July 2020 earning K500 to K1000 per week during banking. She was of the SDA Christian faith.

5.	In allocutus when given an opportunity to speak she stated:

“Yes reason why I assaulted her. She was going around with my husband. As a result, I suffered with high blood pressure and had a miscarriage, so I was angry. I warned her but She kept on seeing him. I am sorry for what I did. Can the Court have mercy on me for it.” 

6.	Angela Michael also made full admissions in her record of interview that she affirmed when she pleaded guilty to the indictment. She was cousin of Wallace Noel and so was from the same village and district in Simbu. She was aged 30 years old educated to secondary school. And had no employment history. She too was married with four children. And was resident at Mt Kiss since her birth with her parents. She recounted similar as co prisoner and cousin Wallace Noel as to the reason for the attack upon the victim as they did. She was also a first offender of the Lutheran Christian Faith.

7.	In allocutus She stated that:

 “Yes, this wrong I committed, but I have a reason. Wallace is like my small sister; her husband had an affair around with Meddellie Robert. And as a result, she got high blood pressure and had a miscarriage to her baby boy. I helped her in the hospital. I was angry and did what I did to her. I am sorry to Court and to Meddellie Robert. I ask for mercy before the Court on me.”

8.	Beverlyn Noel was elder sister of Wallace aged 33 years old born on the 17th February 1989. She was resident with her small sister at the same address. And was married with the husband off working at an overseas mine in Vietnam and Laos. She had a child and also reasoned as a sister that they had gone there to stop Meddellie who was having an affair with her sister Wallace’s husband. And that she helped her sister assault the victim with the stone on the head wounding her. She was a first offender educated to Institute of Business College PNG power Training College Port Moresby, but did not evidence employment history, nor was she earning from employment. She was of the SDA Christian Faith. 

9.	In allocutus, she stated that:

 “Wallace is my small sister. She went through a lot because Meddellie Robert used to have an affair with her husband. She was sick and had a miscarriage so I was very angry and I assaulted her. I am wrong already. I am saying sorry to the Court and the Victim. Have mercy on me.”

10.	Defence counsel applied for presentence and means assessment reports in the light of the allocutus of each prisoner. The court granted the orders under the Probation Act for the production of both reports. Matter was adjourned since 2nd May 2022 and today 13th May 2022, both reports in respect of all prisoners are before me to help in the determination of an appropriate sentence in each case. In each case the presentence reports and the means assessment reports are favourably to the prisoners and recommend probation on condition of payment of compensation to the victim. Who has also accepted compensation and puts the figure at K 5000.00 and a live pig valued at K1000.00. But if they are unable to pay then the matter is in the discretion of the Court.

11.	Beverlyn Ben Noel has indicated positively that she will pay K1000.00 for what She did to the victim and reconcile. Her parents and relatives have indicated positively to help her settle the matter. She is resident at Kenoka Block Goroka 

12.	The prisoners acted unlawfully in assaulting the victim as they did in a group. And She stood no chances of survival given in the way that they acted. As she recounted to the presentence report, she could have died as result. Particularly when she was stabbed, if her hand was not in the way she could have been stabbed in the ribs penetrating the lungs from which she could have died as a result. But the wound to her right bicep saved her life. She is thankful to God that she is alive. 

13.	The medical report dated the 04th August 2020 under hand of Senior Health Extension Officer Bob Bomai Epidemiologist of the Emergency Department of the Goroka Provincial hospital gives an assessment that does not have residual or permanent injuries as a result of the attack. He sets out his examination that there was a two wounds to the scalp that needed 5 stitches. It was 2 cm in length in posterior and 3 cm frontal. On the face it was swollen from the forehead and bruised black eyes. The right hand had a deep wound about 3-4 cm. The length was about 7 centimetres. “And there was heavy blood loss and there were stitches both inside and outside. The outside had seven stitches. The other parts of the body were bruises and tender. She had suffered from a physical assault and injuries using offensive weapons. And sustained multiple wound which required more than 12 stitches and multiple bruises with some significant amount of blood loss. She was treated but will live with pain, discomfort, and some permanent scars. With that she is awarded 70 %.”

14.	Coupled with photographs taken, there were four in all depicting the two injuries on the scalp both stitched and the right hand and the face. All showed very serious injuries that could have been serious had it not been for the medical treatment particulars set out above. It was evidence of the anger that was inflicted on the victim and clearly bore out stemming from what emanated to the prisoners from the conduct of the victim with the husband of Wallace. Especially the fact that she had high blood pressure and a miscarriage that both sisters helped with in the hospital. It was a continuing act that spiral into the crime. The victim contributed with the husband of Wallace to lead the prisoners to the offence. It was a crime of passion. And clearly evidenced out by the determination in the attack visible to bystanders undeterred. And the level of the injuries spelt the extent of the emotional stage of the prisoners. No doubt there was pain that had been endured to come out as it did.

15.	But given that fact it was an offence that was prevalent particularly violence exerted over extra marital affairs and adultery here, especially seen out in the number of cases that came into court in the currency of this circuit. It was clearly no light matter to be cautioned and discharged. But stern message in the sentences that were given. Taking the law into one’s own domain and sphere was the beginning of violence upon violence and spiralling the matter out of proportion. Respect for the rule of law, its upholding was paramount in decent society. And therefore, it was warranted to mete out a sentence that enveloped. But taking account of the particular situation of the prisoners by their respective antecedents, and also the presentence and the means assessment reports placed before court.

16.	Given then what were the appropriate sentence for the prisoners here?

17.	Section 322 (1) the charging section prescribed imprisonment for a term not exceeding three years. That was due the worst case and the facts circumstances set out above did not categorize this as the worst case of unlawful wounding. Particularly canvassed with the fact that each prisoner had pleaded guilty and had expressed remorse and willingness to compensate the victim of the injuries that they had caused her. And demonstrated too in their individual presentence and means assessment reports they had the means to ensure settlement. It did not mean that they could pay their way out of the crime. But it was one of the many matters open to the Court in the determination of an appropriate sentence against each of the prisoners. Notable it was a crime of passion. Wallace would not have got her big sister Beverlyn and cousin sister Angela Michael to do what they did had it not being an affair with her husband with the victim. But given victim too accepted and indicated positively to payment of Compensation. 

18.	By grace there are no serious residual injuries emanating from what they did to her. Given that it was a very serious attack and offence which will have 70% permanent scars her body where it was injured. It was wrong for the actions that they took but there is need to bring back peace law and orderliness in the Community amongst all. But the offence is denounced because it broke law and order. And it was necessary to ensure there was protection of the law accorded and in so doing deterrence against the prisoners personally and any others with similar inclinations. Reformation of the prisoners and maintenance of the Community union was important and fundamental to stop reoccurrence of the matter. Balanced out with the fact that they were first offender with their own families’ particulars set out above. 

19.	This Court has imposed 2 years imprisonment but suspended on condition that the prisoner pay within 2 months K 3000. 00 compensation to the victim in State v Esther Maramundi [2021] N9307(24 November 2021). And that was similar in Buka State v Sekin [2006] PGNC 74; N4479 (25 August 2006), where the prisoner after arguing with his sister burn her house down and then stabbed her in the arm, the court suspended the remaining period of the 2 years suspended after his service in jail. That was more serious because of the related offence of arson which drew 4 years IHL there. It is not the same here comparably. In State v Tupi [2012] PGNC 338; N5192 (12 December 2012) the court wholly suspended the 12 months on probation where the prisoner had stabbed the victim with a knife in the temporal region. He was also charged with the same offence as here.

20.	Suspension of sentence on probation is not condoning the offence comparably with the extent of the injuries received. There are facts circumstances illuminated that portray that the offender will make amends and fit back into society, Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). Punishment is meted out because of the seriousness of the offence and the breach of the rule of law. It is therefore important to set in bold that fact. But it is not to the extent that the reasons setting the offence in motion are not ignored because there is a balance between and proportioning for and against to arrive.

21.	Even in more serious offences up from the present of grievous bodily harm alternatives to imprisonment has been considered where the facts depict. In State v Kara [2012] PGNC 19; N4663 (10 May 2012) 4 years was imposed for grievous bodily harm to the eye. It was superficial and not permanent injury to the eye and compensation was paid even before matter came to court. The court suspended wholly the four years IHL and on condition for the payment of compensation. Here is unlawfully wounding because of the actions of the victim with the husband of Wallace Ben Noel. But it is not her alone but helped by her elder sister and a cousin in a group against the victim. All three are reasonably educated and it is no excuse because resort should have been to the law, not self-help. The aggregate is that a deterrent penalty is due but reformation and restoring lives between the parties for an against is in order given all.

22.	Here I determine that the just and proportionate sentence given all set out above is 2 years IHL and I so impose that upon the prisoners Wallace Ben Noel, Angela Michael and Beverlyn Ben Noel for the crime of unlawful wounding committed upon Meddellie Robert contrary to section 322 (1) of the Criminal Code.

23.	Further in the exercise of my discretion in the light of all set out above I order that sentence to be wholly suspended on a probation order for the same period on conditions as follows:

(i)	You shall all enter into a probation order for 2 years on conditions;

(ii)	You shall all within 48 hours report to the Probation Officer;

(iii)	You shall all be resident; You Wallace and Beverlyn Ben Noel at Kenoka block Goroka; and you Angela Michael at Mt Kiss Goroka at all times in the course of your probation period.

(iv)	You shall all not leave this place of resident or Goroka without leave of this court during the course of your probation period;

(v)	You shall all perform 600 hours of community work at a worksite to be approved by the Probation Office;

(vi)	You shall all keep the peace and be of good behaviour at all times;

(vii)	You shall all not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(viii)	You Wallace and Beverlyn Ben Noel shall both attend your local SDA church every Sabbath for service and worship whilst on probation; 

(ix)	And you Angela Michael shall attend your local Lutheran Church for service and worship every Sunday whilst on probation.

(x)	You Wallace and Beverlyn Ben Noel shall undergo counselling from your local pastor Pastor John Bomal for number of times as may be determined by the counsellor;

(xi)	And you Angela Michael shall undergo counselling from your local Lutheran pastor;

(xii)	You shall all together within 3 months as of the date of this order make restitution to Meddellie Robert in the sum of K 2000.00. cash and a live pig valued at K500.00 with garden food valued at K400.00.

(xiii)	The restitution shall be witnessed by your probation officer, the police informant, Pastor John Bomal and Community leader Holley Begola Ward 1 Goroka Urban;

(xiv)	The Probation Officer shall file a report on the responses and progress of the probationer every six months starting on 13th November 2022 and at any other time or interval as the National Court may order upon application;

(xv)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor:  Lawyer for the Defendant