N10758

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 191 OF 2023

THE STATE

V

JOHN PONGOPIA

Waigani: Miviri J
2024: 08th, 19th & 24th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful Wounding Section 322 (1)(a) CCA – Plea – Hit with Flat Side of Bush knife on Back – cut on Left Forearm with Bush Knife – PSR MAR favourable to prisoner – victim prepared to accept compensation in settlement – no residual injuries – suspended sentence with conditions for compensation.

Facts
The prisoner is husband of the victim. During an argument, He assaulted her with a bush knife on the back and forearm causing wounding there. 

Held
Plea of guilty
First offender
No residual injuries
Suspended sentence conditions for compensation.

Cases Cited: 
Aihi v The State (No 3) [1982] PNGLR 92 
State v Esther Maramundi [2021] N9307
State v Pingjong [2023] PGNC 436; N10580
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:
S. Patatie & J Patil, for the State	
T. Yapao, for the Defendant
						
SENTENCE

24th April 2024

1.	MIVIRI J: This is the sentence after a guilty plea by the husband of the victim who assaulted her during an argument with the flat side of a bush knife firstly, and then with the sharp edge on the left forearm. She sustained a cut on it.

2.	On the 20th March 2022 around 10.22am the complainant Rose Ruma wife of the accused got into an argument with him. She went into the room and packed his clothes. As she did the accused approached her from the back and hit her twice on the back with the flat side of a bush knife. She fell to the floor, and he swung the knife the second time again, and she raised her hand to block it. She was cut on the forearm. At that time, he unlawfully wounded her, and his actions were contrary to section 322 (1)(a) of the of the Criminal Code Act. No one case is the same each would draw its own sentence by its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92.

3.	Which section is in the following terms: - 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.	He is liable to be imprisoned for a term not exceeding three years imprisonment. Which is the maximum sentence for that offence. But he will not be imprisoned to that term because this is not the worst case of unlawful wounding, Aihi v The State (No 3) (Supra). His sentence will be by its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against him. In his favour is the fact that he has pleaded guilty confirming the admissions in the record of interview conducted with police on the 20th April 2022. That is by itself evidence of the acceptance that he has wronged his wife and accepts responsibility for his actions. He now seeks to amend his way. 

5.	A first offender aged 37 years old originally from Walubu village, Ialibu Pangia Southern Highlands Province. He is married to the victim Rose Ruma customarily. And has five children. Two of the elder children are from her earlier marriages with two other men. But whom the accused has taken as his children. The two younger ones are his own. 

6.	What has happened is a culmination of the dispute that had led to the victim stoning his vehicle and he reacting to her storming when he was asleep after consuming alcohol. She had picked the kids from school he was not there despite her calls to him on his telephone. Both parents are responsible for the children and must ensure they do their part for them. The culmination of her packing his clothes drove him to the offence. The injuries are laid out by photographs and a medical report. She sustained injuries to the back of the neck, left shoulder, left arm, her back, imprint of the shape of the knife on the back, with a small cut at the bottom, left hand elbow blooded and cut, also her small man finger. Then the hand bandaged showing treatment to it.

7.	Medical report is made 22nd March 2022 under hand of Doctor Tony Sonson general practitioner from Peasant’s Medicare. “Rose is thirty-eight years old now. She presented to this Clinic at 5.30pm on the 20thMarch 2022 with a complaint of sustaining injuries to her face, left shoulder, back, left forearm, left fingers and her right fifth finger after she was physically assaulted by her partner. She said that her partner attacked her with a bush knife. The incident occurred between 12-00-1.00 pm on the 20/03/22 at the family home 8-mile settlement.
Examination showed stable vital signs. The following injuries were noted:
1.	 A 3cm x 0.5cm oblique, superficial laceration on the left lateral forearm.
2.	Bruised and lacerated left 2nd and 3rd middle interphalangeal joints.
3.	A small superficial laceration measuring 1.5 cm x 0.2cm on the lateral edge of the middle part of the right 5th finger.
4.	A 8cm linear bruise on the left shoulder.
5.	Multiple widespread bruises over the upper, middle and lower back.
A diagnosis of Multiple soft tissue injuries due to Physical assault was made. The lacerations were dressed with hydrogen peroxide dressings and she was treated with Crystapen Amoxycillin and Panadol. Dr. Tony Sonson.”

8.	There are no serious and lingering medical complications because of the use of that bush knife on her. But the use of the bush knife in this way cannot be allowed to continue without sanction by the law. At the same time the life of the family must be allowed to come back on normalcy adherence to the rule of law. In State v Esther Maramundi [2021] N9307(24 November 2021) 2 years imprisonment was imposed upon the prisoner who had pleaded guilty to stabbing her co wife with a knife. She was ordered to pay compensation as a condition of that suspension. Similarly in State v Pingjong [2023] PGNC 436; N10580 (23 November 2023) 1 year IHL was imposed but suspended on a Probation order for the same period with conditions for payment of compensation. In 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.

9.	Suspension of sentence occurs because the facts and circumstances warrant that the offender will make amends and fit back into society. Because "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health,” Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986). Here the presentence report is basis that this is an offence between husband and wife. There are four children depended on both for survival. The father has offended but he must be sanctioned by the law. But not to the extent that the children suffer. But the mother must be protected from his actions. He must not be allowed to commit the offence again. He must be given his benefit of the guilty plea he has entered.

10.	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 by the husband on the wife. He is reasonably educated but it is not an excuse to resort in this way. The aggregate is that a deterrent penalty is due but reformation and restoring lives between the parties for and against is in order given all.

11.	I determine that the just and proportionate sentence given all set out above is 18 months IHL and I so impose that upon the prisoner John Pongopia for the crime of unlawful wounding committed upon Rose Ruma contrary to section 322 (1) of the Criminal Code on the 20th March 2022 at First Block 8-mile Port Moresby. 

12.	Further in the exercise of my discretion under section 19 (6) of the Criminal Code, in the light of all set out above, I order that sentence to be wholly suspended on an 18 months good behaviour bone on conditions as follows:

(i)	You shall enter into good behaviour bond for 18 months on conditions;

(ii)	You shall all not take liquor or any form of intoxicating substance or drugs during the period of the good behaviour bond;

(iii)	You shall within 3 months as of the date of this order make restitution to Rose Ruma in the sum of K 1000.00. cash and a live pig valued at K500.00 with garden food valued at K 400. 00.

(iv)	The restitution shall be witnessed by your probation officer, the police informant, and Community leader Brian Boire and immediate family of both prisoner and victim. 

(v)	The Probation Officer shall file a report on the discharge of the Condition of good behaviour bond by 24th July 2024. 

(vi)	In a breach of any of conditions of the good behaviour bond your good behaviour bond shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.

Ordered Accordingly.

__________________________________________________________________
Public Prosecutor:  Lawyers for the State	
Public Solicitor: Lawyers for the Defendant