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State v Kulia [2013] PGNC 244; N5403 (23 April 2013)

N5403

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 1187 OF 2010

BETWEEN:

THE STATE

AND:

VERONICA MANDILI KULIA
Prisoner

(No 2)

Mendi: Kassman J
2013: 12th and 23rd April

CRIMINAL LAW – Grievous Bodily Harm – Sentence – Verdict of guilty following trial – Bush knives held by Victim and Offender (husband and wife respectively) threatening each other – no other criminal conduct – genuine expression of remorse – no prior conviction – sentence of one year – deducted time spent in remand until bail – balance of term wholly suspended with conditions of six months good behavior bond and three months community service

Legislation cited:
Constitution Section 37(10)
Criminal Code Act c.262 Sections 19 and 319
Criminal Law (Compensation) Act 1991
Case Law cited:
Goli Golu v. The State [1979] PNGLR 653
The State v. Wapuri [1994] PNGLR 271
State v. Vincent Maiwa Unreported 2004 N2710
State v. John Vagi Unreported N3543

Counsel:
Nancy Lipai for the State
Cecelia Koek for the Offender

DECISION ON SENTENCE

23rd April, 2013

1. KASSMAN J: On 16 November 2012, Veronica Mandili Kulia ("Veronica") was found guilty of the offence of causing grievous bodily harm to Jim Kia ("Jim") on 29 March 2010, an offence under section 319 of the Criminal Code c.262. Veronica had pleaded not guilty and claimed to have acted in self defence. The conviction was recorded after the conduct of the trial on 13 December 2011.
   
2. This Court's written decision on the guilty verdict sets out the findings on the evidence and reasons for the decision. I have considered that judgment along with the Pre-Sentence Report filed 10 April 2013 and the submissions of counsel for the State and Veronica both oral and written that were presented on 12 April 2013.
   
3. Section 319 states the penalty for the offence of grievous bodily harm is imprisonment for a term not exceeding seven years.
   
4. The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.
   
5. This court may also suspend part of or the entire sentence with or without conditions. This is authorised under Section 19 of the Constitution. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
   
6. I have been advised by Nancy Lipai of the Office of Public Prosecutor that Veronica was detained in custody awaiting trial from 15 April 2010 to 21 October 2010, a period of six months and six days.
   

Veronica's personal particulars and background

7. As stated in the judgment on verdict, "at the time of the incident, Veronica and Jim had been married for about eight years. Jim was 36 years old and a policeman with the mobile squad based in Mendi and had been in the police force for twelve years. Veronica was 40 years old and is from Paipkola Village, Nebilyer District Western Highlands Province. She completed Grade 12 through University of Papua New Guinea Open College in Mendi and had been employed previously but was not in formal employment at the time of the incident. There were no children of the marriage and the marital home was a house at Magani Police Barracks in Mendi. ... At that time, Jim and Veronica were experiencing marital issues and Jim had been away from the marital home for extended periods. One reason for his absence being he was away on duty as a member of the police mobile squad. Veronica complained Jim was engaged in affairs with other women but she never took her claims any further with police or to court."
   

Aggravating factors

8. Veronica used a bush knife. That is a dangerous weapon which can have devastating effect on the human body including complete severance of a limb, deep wounds to any part of the body and which could easily result in immediate and substantial loss of blood and death.
   
9. In this case, Veronica's husband would have experienced extreme pain and suffering immediately after being struck on his hand and fingers by the bush knife swung by veronica. The medical report confirms Jim was left with permanent injuries. I described that in paragraph 16 of my judgment. "The medical evidence of Dr Nolpi Tawang confirms that the injuries sustained by Jim to the fingers on his right hand included fractures to his metacarpal bones 3rd and 4th digits and I observed when Jim held up his right hand in court in the trial that he had serious disfigurement to the three middle fingers which clearly was a permanent injury."
   
10. Veronica maintained throughout the trial her claim that she acted in self-defence but I found that to be "a recent invention" as she did not raise that at the conduct of the record of interview, her first opportunity to clearly assert her innocence of wrongdoing by explaining her conduct as a valid and reasonable reaction to impending or threatened danger to her personal safety.
    
11. Veronica had also served as an officer of the magisterial service so she should have known better than to act in the manner she did. She was aware of the avenues to seek resolution of her marital issues and complaints about the alleged threats to her welfare from her husband.
    
12. Attacks of this nature and the use of bush knives are also prevalent.
    

Mitigating factors

13. Veronica has no prior conviction and, until this unfortunate incident, she had an unblemished record as a peaceful and very good citizen with high-standing Christian principles.
    
14. In allocatus, Veronica said:
    

"Firstly, I would like to say sorry to God for doing this wrong. Secondly, I would like to say sorry to this honorable court, lawyers and public for wasting their time which now has found me guilty. Thirdly, I would like to say sorry to the victim for causing injury to his hand. In the course of the offence, I have come to realize that what I did was wrong and that in the near future I plan to be a good citizen. Lastly, I ask this honorable court in the process in handing down its decision, I ask for mercy because I know this honorable court has the power and discretion to have mercy on me." I then asked "Why should I have mercy on you?" to which Veronica answered "In my lifetime, I was employed in a respected office and this is my first offence. To show my apology and sorry, I have paid some to the victim as compensation."

Comparative cases

15. Counsel for Veronica referred to The State v. Wapuri [1994] PNGLR 271. In that case, the accused pleaded guilty to a charge of grievous bodily harm. The Accused struck the face of the wife of his cousin using a motor vehicle handbrake cable. This assault left the victim with 90% loss of vision in her left eye. The court imposed a sentence of eighteen months, deducted 5 months spent waiting for his trial and suspended the balance of the term and placed the accused on good behavior bond for twelve months. In addition, the court after considering a means assessment report and evidence of custom and compensation payments made in the area at that time ordered, as authorized under the Criminal Law (Compensation) Act 1991, the Defendant pay compensation to the victim of five hundred kina (K500) cash and five pigs valued at eight hundred kina (K800). In default of payment, the accused was liable to two months imprisonment.
    
16. Counsel for the State referred to three cases. I have located the following two cases. In State v. Vincent Naiwa Unreported 2004 N2710, the accused pleaded guilty to a charge of grievous bodily harm to his sister in-law. The accused was a first time offender as in this case but the circumstances of the attack are not similar as the assault was unprovoked and was vicious resulting in complete amputation of a finger and seriously injured two other fingers on her left hand after the victim raised her left hand to block or fend off a bush knife swung by the Defendant towards the victim's head. The court also found the use of bush knives in assaults as being prevalent even in disputes among members of the family. A sentence of five years imprisonment was imposed.
    
17. In State v. John Vagi Unreported N3543, the accused pleaded guilty to doing grievous bodily harm to another man by slashing his forehead with a bush knife. There was a history of disputes and physical fights between the two and their families. In mitigation, the court considered that the defendant had surrendered and cooperated with police, he pleaded guilty, expressed some remorse and had good family and community support. The court also considered aggravating circumstances such as the use of a dangerous and lethal weapon, multiple cuts inflicted on the victim, the attack was planned, no apology, compensation or reconciliation, the assault could have resulted in a fatality and the victim suffered permanent injuries. A sentence of four years imprisonment was imposed.
    

Sentence

18. When considering the facts and circumstances of the cases referred to above, the thing that sticks out is my finding that Veronica and Jim were engaged in an argument as husband and wife which had the potential to escalate as they were each holding a bush knife but what was clear was my finding at paragraph 13 of my judgment on verdict "... that the blow from the knife swung by Veronica on the verandah had the most impact in that it elicited the most immediate reaction in Jim to flee the scene in search for medical attention. As opposed to this, their earlier threats and actions towards each other, with or without knives, were intended as threats and counter threats without intention to cause serious injury to the other." So even though Veronica held a dangerous weapon, the victim was also in possession of a bush knife and an active participant in the confrontation. In all of the cases referred to by counsel, the victims were not active participants and certainly did not have possession of dangerous weapons in any active and provocative manner. The only difference here is Veronica pleaded not guilty but was found guilty on the court rejecting Veronica's plea of self-defence.
    
19. Veronica also claims to have paid compensation to Jim of an amount of K4,310. There was no serious or direct evidence of this apart from what was provided in the Pre-Sentence Report. I will not give much credence to this as it appears to be adhoc payments apparently made from the months of May to November 2010 but there is no supporting statement from anyone else who witnessed the transactions as being made for purposes of a compensation arrangement between the parties.
    
20. As the finding of guilt was made following a full trial, a term of imprisonment is appropriate which I set at one year. From this term must be deducted the time spent in remand awaiting trial of six months and six days. The balance of the period I will wholly suspend on condition Veronica enter into a recognizance to be of good behavior for six months and perform three months community service.
    
21. The orders of the court are:
    
    1. A sentence of one year imprisonment is imposed.
       
    2. Six months and six days of that one year sentence is deducted for the time in remand awaiting trial.
       
    100. The balance of the sentence is wholly suspended with conditions that:
         
         1. Veronica will be of good behaviour for six months from the date of this order; and
            
         2. For a continuous period of three months within the next twelve months, Veronica will perform community service in:
            
            1. Cleaning services and providing such other appropriate initiatives at the Mendi Police Station Detention Cells and the main streets of Mendi Town
               
            2. for at least eight hours every Friday.
               
            3. Under the supervision of the Community Based Corrections Officer supported by the Corrective Institutions Service Commander at Bui-Iebi and Mendi Police Station Commander (or their nominees). The officers now identified to perform these roles are Ms Susan Elias, Private Loko and Sergeant Kereme representing the respective organisations.
               
         3. For the duration of her community service:
            
         1. Veronica will not leave the Southern Highlands Province, except with the leave of the National Court
            
         2. Veronica will not consume alcohol
            
         3. Veronica will report to the Assistant Registrar, National Court, Mendi on the first Friday of every month between 8am and 9am.
            
         4. Veronica must have a satisfactory probation report submitted to the National Court Assistant Registrar at the end of her three months community service
            
         4. Veronica's bail monies of K1,500 shall be refunded by Veronica and given to the Assistant Registrar, National Court Mendi who will deposit such funds in a trust account opened for the purpose with Bank South Pacific, Mendi Branch. Such funds shall be used solely for the purposes of the community service identified above and at the discretion of the Community Based Corrections Officer.
            
         5. The Mendi Town Manager is directed to provide all necessary assistance to the Community Based Corrections Officer in the conduct and supervision of community services as described above.
            
         6. If Veronica breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained to serve the rest of her sentence in custody.
            

Judgment accordingly.
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused