N9931

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 602 0F 2020

  THE STATE

V

JEFF WAIYE
Accused

Tabubil: Sambua, AJ
      2022:   16th, 28th & 23rd   February
CRIMINAL LAW – grievous bodily harm – guilty plea -de facto provocation - no prior convictions- use of bush knife to attack victim – victim sustain knife wounds - tip of nose bitten off - pre-trial custody period considered as appropriate penalty – sentenced to rising of the court.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Elipa Kalabus v The State [1988] PNGLR 193
State v Polin Pochalon Lopai [1988-89] PNGLR 48 
State v Steven Jimmy [2018] N7246
State v Dirona [2019] N7985 
State v Hudson Irima & 1 other [2014] N6535 

Counsel

Mr A Kaipu, for the State
Miss R Mangi, for the Accused

JUDGMENT ON SENTENCE
23rd February, 2022
1.	SAMBUA, AJ: On Wednesday 16th February 2022, the State presented an Indictment against the prisoner charging him with one (1) count of grievous bodily harm contrary to section 319 of the Criminal Code. He pleaded guilty to the charge on arraignment and submissions on sentence was heard on Friday 18th February 2022.

Brief facts

2.	The prisoner and the victim were married at the time of the commission of this offence. The State alleged that the victim intended to fly out on the 26th of May 2019 with her two children back to Wabag due to her husband's unfaithfulness. So, on 25th May 2019 she was at home sleeping, all packed and ready to flyout. At about 6.00 am in the morning of the 26th of May 2019, the prisoner broke open the house door and attacked her with a brown handle bush knife. The prisoner cut her on her hands and body. He also bit off the tip of her nose and spit it out on the veranda. The victim then passed out on the floor.

3.	The State said that the actions of the prisoner in cutting the victim with a bush knife and biting her nose with his teeth amounted to grievous bodily harm thereby contravening section 319 of the Criminal Code.

The law  

4.	The crime of grievous bodily harm is created by section 319 of the Criminal Code. Section 319 reads – 

“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.

5.	It is a settle principle of law on sentence that the maximum sentence is reserved for the worst or the most serious instances of case. This principle was state in the case of Goli Golu v The State [1979] PNGLR 653 and in the case of John Elipa Kalabus v The State [1988] PNGLR 193.

Factors on Sentence
Mitigating factors

-	Guilty plea
-	First time offender with no previous convictions
-	He expressed remorse in allocatus

Aggravating factors

-	Use of a dangerous weapon - in this case a bush knife  
-	The victim suffered knife wounds and the tip of her nose was bitten off.
-	Prevalence of the office.

Personal Particulars

6.	The prisoner is 42 years old from Kombos village, Wapanamanda District in the Enga Province. The prisoner and the victim were married by custom and have four children. They have been married for about 18 years when the alleged incident happened.

7.	The oldest daughter is 19 years old, and the 2nd daughter is 16 years old while the sons are 13 and 10 years old respectively. The oldest daughter is doing her grade 9 while her younger siblings are in primary school.

8.      He attended Wapanamanda Primary School and after that he attended the Four-Square Church High School still in Wapenamanda and did his grade 9 and grade 10. He did not attend any tertiary education but underwent a training with Kumul Training Institute in Port Moresby, National Capital District where he was trained to drive semi-trailers.

9. The Prisoner came to Tabubil in 2008 and was employed by the contractor company Star HR. Later he bought a ticket for his wife, and she came to Tabubil in the same year.

10.	In 2010 he bought a house and moved in with his wife to that house. He then resigned from his job and started an informal business such as selling betel nut, lending money, raising poultry etc. When they had enough money, he flew his children from the village to Tabubil and enrolled them at the Tabubil Primary School. They were living in Tabubil when the offence was committed. The prisoner attends the Foursquare Church here in Tabubil.

11.	Miss Mangi on behalf of the prisoner submitted that in considering an appropriate penalty to imposed in this case, the Court should take into account the following aggravating and mitigating factors pertinent to this case.

12.	She submitted that the aggravating factors in this case are follows:-

a	An offensive weapon, ie a bush knife was used 
b	The offence is prevalent.
c	Victim suffered knife wounds to her body
d	The tip of her nose was bitten off.

13.	And she also submitted that the mitigating factors in this case were:-

a	The prisoner had pleaded guilty, thus saving the Court and the State time and resources in running a trial.
b. The prisoner has co-operated with the Police from the very beginning.
c. The prisoner is a first-time offender, without any prior criminal record.
d. The prisoner has paid compensation and is willing to pay additional 
     compensation to his wife.
e. In allocutus, the prisoner expressed regret and genuine remorse and promised that he will not do such a thing to his wife again

14.	Miss Mangi submitted for the court to consider the mitigating factors which outweigh the aggravating factors and to look into the gravity of the circumstances under which the offence was committed when deciding the sentence. The presences of aggravating factors in this case are undeniable but they are not of the worst type.

15.	She submitted that the range of sentences for the offence of grievous bodily harm under s.319 are between 3 to 4 years depending on the circumstances of each case.

16.	She further submitted that in the present case, the offender pleaded guilty and has express remorse and apologised to the court and to his family, and the family of the victim for committing the offence. He said in his allocutus that he had some marriage problems with his wife and that caused him to do what he did. Since in custody he has changed his old habits and he is a changed person. He apologized and said that in the eyes of God, the Court and his wife, he promised not to repeat what he did.

17.	In light of the mitigating factors and the aggravating factors, she submitted that the court should consider the range of sentence between 3 years to 4 years as the appropriate sentence given the circumstances of this case.

18.	She also submitted that the pre - sentence report states that the offender is a suitable candidate for probation and recommends probation for the offender. Therefore, she submitted that this Honourable Court has an unfettered discretion to impose a sentence it deems appropriate for this case and referred to the case of Thress Kumbamong v The State (2008) SC1017. Hence, asked this Honourable Court to exercise its discretion and suspend the sentence imposed and the offender be placed on good behaviour bond.

19.	In summary, it is submitted that the present case, does not fall into a worst case of unlawfully causing grievous bodily harm, which would otherwise warrant the imposition of seven years as the maximum penalty. Therefore, she asked the Court to impose a sentence between 3 to 4 years and that the sentence imposed be wholly or partially suspended and that the pretrial custody period be deducted from the head sentence.

20.	Mr Kaipu on behalf of the State submitted that the maximum penalty prescribed for any offence is reserved for the worst form of that offence. This principle is grounded in several case authorities, The Supreme Court in the case of Goli Golu v The State [1979] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105, were of the opinion that the maximum penalty should only be imposed in those cases where they are regarded and categorized as the "worst type case" that is under consideration.

21.	In Lawrence Simbe v The State [1994] PNGLR 38, the Supreme Court stated that the principle in determining sentence is that each and every case should be decided on its own peculiar facts and circumstances.

22.	Therefore, he submitted that the court should impose a sentence that would operate both as a personal deterrence to the prisoner and a general deterrence to the public at large. A sentence of between three (3) to four (4) years is appropriate in the circumstances of this case.

23.	He submitted further that considering that this is not a worst instance of this offence the State is of the view that this is a case where partial or wholly suspended sentence is appropriate on strict conditions including compensation.
The Pre-Sentence Report
24.	I must commend the Probation Officer Mr Thomas Kundu for providing a detailed and informative Pre – Sentence Report (PSR) within such a short time. In that report it was stated that the prisoner Jeff Waiya is 42 years old and comes from Kambas village, Wapenamanda in Enga Province. He has been residing here at the  Bar Corner, Tabubil North Fly, Western Province.

25.	The prisoner got married to Susan from Baiyer in Western Highlands Province and they have four (4) children — two boys and two girls. The two boys reside in Tabubil with some family friends while the two girls live in the Highlands and are attending school there.

26.	The prisoner and his wife bought a block of land at the Bar corner, and they have a semi makeshift family house with 3 bedrooms up-stairs and another 3 bedrooms downstairs.

27.	Before the incident, the prisoner stated that he was employed by Star HR contractor company as a driver for 3 years and in 2017, he was employed by a drilling company.

28.	The PSR also states that the Prisoner is the first born in his family and has 3 brothers and two sisters. The prisoner's second brother works at the Port Moresby General Hospital and the other brother works at Mt. Hagen General Hospital.

29.	The rest of the family live in the village, and they all communicate, and they help him (prisoner) in times of needs.

30.	The prisoner’s family contributed K5, 000.00 to the victim (offender's wife) to get further medical treatment and later they all agreed to compensate the victim, the mother of his four (4) children to restore the family unity.

31.	When the prisoner was interviewed by the Probation Officer, the prisoner told the Probation Officer that it was on Saturday morning he received a phone call from the victim’s sister, Cathy Mark that there was a man inside the prisoner's house while he was working in the nightshift up in the Star Mountains. The phone call came around 1:00 am so he left his job and came down to the house to prove it.

32.	As soon as the prisoner entered the house, there was a man inside the house, and he went straight and broke the door open and saw the man. The prisoner almost cut the man with the small bush knife but somehow his wife blocked it and the man escaped. Thereafter he turned to his wife and bite off the tip of her nose and cut her with the bush knife he was armed with

33.	The prisoner further stated that he had no intention to harm his wife. It was the wrong move done by his wife that made him angry however regretted his action for losing quality time in jail and will not do such a thing in future. The prisoner also stated that he loved his wife and they both got married and have four (4) children, but she (victim) betrayed him by inviting the man to his (offender's) house.

34.	The Prisoner stated that he will make it his business to compensate his wife in a Melanesian way if court allows it. His brothers and family are willing to support him, and they have K3,000.00 in cash on hand and 10 pigs to be given to the victim and her relatives this Christmas (2022).The Pre-Sentence Report also states that the prisoner is a suitable candidate for probation.

35.	This is a case arising from a domestic setting. The victim wife was the accuser who accused the prisoner of having an extra martial affair and thereafter stopped the prisoner from sleeping with her. This went on for almost a year and then he (prisoner) heard rumours of his wife having an affair with another man but was not able to prove it.

36.	The prisoner said in Question and Answer 33 of the Record of Interview that it was a one-off incident that happened after his wife had stopped him from sleeping with her and he admitted to his wife when she questioned him. He was going to organise compensation to say sorry and reconcile with his wife. So, he left for his village in Wapenamanda, Enga Province to organise the compensation payment. Whilst in the village he heard stories of his wife going around with a man here in Tabubil. 

37.	And upon his return from his village in Wapenamanda, Enga Province, the wife refused him entry to the house he built and owned and had to find refuge elsewhere here in Tabubil with friends and relatives. Whilst he was here in Tabubil he saw his wife with a man but wanted to confirm it. Hence on the morning of the 26th of May 2019 he confirmed it with his own eyes when he caught and confronted them in his own house and caused grievous bodily harm to his wife, the victim in this case.

38.	This was a clear case of a de facto provocation. The victim/wife has been accusing and blaming the prisoner for having extra -marital affair with other women when she was doing it herself. She acted so innocent like an angel. She was shifting the blame to the prisoner trying to create an impression that the prisoner was a worst person, a womaniser and an unfit husband and father to their children and her family and relatives in Tabubil believed and took sides with her. What a hypocrite she was. I find that she was an unfaithful wife to the prisoner.

The Sentencing Trend 

39.	I now look at the sentences that have been imposed in similar cases:-

a.	State v Johnson Pato Wonot [2014] N5522 (25 February 2014), Kokopo: Oli, AJ. The prisoner was charged with Grievous Bodily Harm. He pleaded guilty to the charge. The prisoner injured his wife with a iron rod to her right leg and extensive degree of fire burns to her neck area and pose potential risk of developing contractures (that may cause deformity to the neck). The Prisoner suspected wife of extra marital relationship. The mitigating factor was that the victim sustained and suffered injuries considered mild to moderate degree in nature as per Medical Report and therefore considered that a custodial sentence is appropriate and a 4 years IHL was imposed less the pre-trial custody period to be served at Kerevat Correctional Institution.

b.	State v  Elvis Kos  [2013] N5365 (17 September 2013), Minj & Mt. Hagen: David, J. Prisoner was charged with grievous bodily harm. The prisoner is husband of victim and he assaulted her with axe after prisoner suspected the victim of engaging in extra-marital affairs in his absence. Multiple amputation of digits on victim's left hand - fourth digit amputated at the level of the proximal and middle phalangeal joint - fifth digit amputated at the level of the proximal phalange and metacarpal joint – each finger chopped off separately when left hand placed on wooden bed. The prisoner locked the victim in room despite her injuries. It was a prevalence of offence. The prisoner was an educated person. He pleaded guilty and was the sole attacker. He was a first-time offender. There was de facto provocation. The offence was committed in domestic setting. Court considered prisoner's good background prior to incident and the mitigating and aggravating factors as equal. The aggravating factors however outweigh mitigating factors - sentence of 4 years in hard labour imposed. The pre-trial confinement period was deducted and the remaining term of three (3) years  was  suspended on terms.

c.	State v Ambe Tu [ 2008] N3306 (11 March 2008) Tabubil: Kandakasi, J.
The prisoner was charged with Grievous bodily harm. The victim was a runaway wife leaving husband with children. The victim was having relationship with another man – Non legal provocation – Multiple cuts to victim’s body including both hands – Injuries were life threatening – Victim left with serious disability in the use of both of her hands - Guilty plea – First time offender – Prevalence of offence - No compensation paid – No pre-sentence report - Custodial sentence appropriate – Sentence of 4 imposed – Criminal Code s. 319.

40.	It seems that from the cases cited hereabove it appears the range of sentences for this type of GBH cases is at four years in hard labour either with part suspension or full suspension depending on the peculiar circumstances of the case.

41.	If I were to order payment of compensation, any form of compensation payment has to be done in accordance with the Criminal Law (Compensation) Act which sets the limit at K5,000.00. According to the Pre-Sentence Report he has already paid compensation and he is willing to pay more in a Melanesian way to say sorry and reconcile with his wife.

42.	Hence, will not consider and order any further compensation payment however, if the prisoner is willing to fulfill his commitment in a Melanesian fashion of reconciliation with his wife, that is matter for him to do without the court’s intervention.

43.	In sentencing, I have considered all relevant factor on sentence and the submissions by counsels and the sentencing trend in similar kind of cases that I have cited above. The sentencing trend in that case stands at about 4 years in hard labour either with part suspension or full suspension depending on the peculiar circumstances of the case.

44.	In this case because of the wife’s accusation of the prisoner having an extra marital affair when she herself was doing it, I consider that the sentence, I impose on the prisoner will be below the sentencing trend as stated in the cases I cited above.

45.	The pre-sentence report compiled by the Probation Service is in favour of the prisoner and recommended that the prisoner is a suitable candidate for probation.

46.	And since I consider this case is not a very serious or worst type of GBH case with life threatening injury, I consider that a sentence of 2 years, 2 months and 14 days is appropriate in the circumstances of this case, and  I so impose the sentence of 2 years, 2 months and 14 days
Order
47.    The Court orders that:
1. Prisoner is sentenced to two years (2) years, two months and 14 days
2. PTC period of 2 years 2months & 14 days served in custody whilst awaiting hearing of this case will be deducted from his sentence. Leaving a Nil balance. Therefore, he has no sentence to serve, and he is sentenced to the rising of this court.
3. The prisoner is to be released from Ningerum Jail forthwith.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused